Chapter 1. Background
Crown Office and Procurator Fiscal Service (COPFS) is the sole prosecuting authority in Scotland and also investigates sudden deaths and complaints against the police which are of a criminal nature.
Additionally the Crown is ultimus haeres, or the "ultimate heir" and the following property falls to the Crown and its administration to COPFS, through the office of the Queen's and Lord Treasurer's Remembrancer -
- the estate of persons dying without leaving a will and with no traceable blood relatives;
- the net assets of dissolved companies and other organisations which are no longer operating;
- treasure trove - essentially portable antiquities which have been taken out of the ground.
The area of COPFS work that is most well known by the public is in the investigation and prosecution of crime.
Even here however the role of the Crown Office and Procurator Fiscal Service is one which is probably not well understood by the public. It would appear that the different responsibilities of the component parts of the justice system are not widely and publicly understood.
Crown Office and Procurator Fiscal Service (COPFS)
COPFS is a Department of the Scottish Executive, the ministerial head is the Lord Advocate whose position is protected by the Scotland Act 1998 Sections 48 and 29. Although the Lord Advocate's appointment is political decisions taken by him in respect of prosecutions and deaths are taken independently and he is not subject in that regard to the normal rule of collective ministerial decisions. At ministerial level the Solicitor General for Scotland assists him.
The Civil Service head of the Department is the Chief Executive who is the accountable officer and whose principal role is the corporate leadership of the Department. The Crown Agent is the principal advisor on prosecution policy and is head of the profession and assists him. (At the time of writing the two posts have been conjoined.)
The Department was restructured in 2002 following a review of its management and organisation (the Price/Dyer review) and now consists of 11 Areas (previously six Regions) each headed by an Area Procurator Fiscal who reports to the Chief Executive. The Area Procurator Fiscal is responsible for the quality and timeliness of legal decision-making in their area and this is especially true in the case of race crime. The Areas are divided into District Offices headed up by a District Procurator Fiscal and legal and administrative staff. The 11 Areas match the main police areas replicating similar changes in England to the Crown Prosecution Service.
Procurators Fiscal receive reports in relation to crimes (approximately 300,000 per year) and sudden deaths (approximately 14,000) from the police and a range of other reporting agencies including the Health and Safety Executive, Inland Revenue and local authorities. The Department is responsible for making decisions about and bringing prosecutions for almost all criminal offences both under statute and at common law. Private prosecutions are rare.
In general terms Procurators Fiscal have responsibility for the investigation of any crime within their jurisdiction.
While the Procurator Fiscal has authority to direct and control investigations carried out by the police there is no related power to direct and control the investigation and reporting of crimes by the non-police reporting agencies.
The modern, practical reality of the relationship between the police and COPFS is such that the vast majority of criminal offences are initially detected, investigated and reported by the police without any initial involvement from COPFS.
It is the duty of COPFS to ensure that all evidence relevant to a crime investigated is secured, including evidence favourable to an accused person.
Serious cases are further investigated through a process undertaken by the Fiscal or a member of legal or precognition staff called "precognition" and the final decision on prosecution is made at Crown Office.
When representing the Department in court the Fiscal represents the public interest, he or she does not exclusively represent the interests say of a victim or the relative of the deceased but the whole of the public interest and that includes the interests of the accused.
Sentence is a matter for the court and not for the Fiscal and the Fiscal would not generally make any comment to the court on this with limited exceptions.
Traditionally the Crown was generally not concerned with sentence at all and it is only in relatively recent times that the Crown has obtained the ability to appeal against a sentence that is unduly lenient (and not just lenient) or inappropriate. That right is used sparingly and only after Crown Counsel's instructions obtained. Crown Counsel are appointed by the Lord Advocate to assist him. Traditionally Crown Counsel have been recruited from the ranks of the Scottish Bar but some solicitors (with a right of audience to appear in the High Court) have recently been appointed, including Departmental personnel. They are also referred to as Advocate Deputes.
The Appeal Court recognises that sentence is essentially a matter for the sentencing judge or sheriff. A sentence will be held by the court to be unduly lenient only if it falls outside the range of sentences which a sentencing judge, applying his mind to all the relevant factors, could reasonably have considered to be appropriate.
When a trial judge has heard evidence he is, in general held to be in a better position than the Appeal Court to determine the appropriate sentence.
The decision on whether or not to prosecute and in what form is of course an important one and taken by the Procurator Fiscal and not by the police or other reporting agency. In serious cases the Procurator Fiscal is obliged to report the case to Crown Office, which is the Departmental headquarters where Crown Counsel consider such cases.
In deciding whether or not to prosecute the Procurator Fiscal must first assess whether there is sufficient evidence to justify proceedings. In Scotland generally corroboration or evidence from two sources is required before a case can proceed. A single uncorroborated complainer, no matter how credible, is insufficient. If there is sufficient evidence the Procurator Fiscal must then consider what action should be taken having regard to the perceived public interest. This is especially the case in relation to race crime and we will return to that in more detail in Chapter Two.
Prosecution in court is not the only option where there is sufficient evidence; recent years have seen a considerable growth in alternatives to prosecution including fiscal fines, conditional offers, diversion and warnings. There is no Scottish equivalent of the English test of the probability of conviction but the Department has produced a prosecution code that sets out the criteria for decision-making.
The current practice is not to give reasons for decisions not to proceed with a case. Historically this was based on a number of considerations including the fact that statements to the Fiscal are confidential and it would not be fair to the accused to have a form of trial outwith the court process. However, the Department is currently reviewing policy in this area and a change of approach is possible.
The Historical Perspective
As far back as 1989 it had been agreed that liaison between Community Relations Councils (as Race Equality Councils were then called) and the Procurator Fiscal was appropriate. The then Lord Advocate, keen to foster good working relationships with the Community Relations Councils, welcomed approaches to and discussions with the Procurators Fiscal by representatives of Community Relations Councils and similar bodies.
The Department's first training on racial and cultural awareness took place in the autumn of 1995. This was organised internally with the co-operation of the Commission for Racial Equality (CRE). Attendance was voluntary and designed for all levels of staff. There was no cascading of the training. The seminar was launched by the then Lord Advocate, Andrew Hardie and addressed by the Head of Community Involvement of Lothian and Borders Police, by Dr Jogee of the Commission for Racial Equality in Scotland, by Dr Robert Shiels at that time attached to Crown Office Policy Group and representatives of the then existing Racial Equality Councils. Delegates from the Commission for Racial Equality and Racial Equality Councils attended and participated in syndicate discussions which were based around case studies.
Additionally in 1995 the Judicial Studies Board paper on body language and cross-cultural communication was issued to all legal and precognition staff. The paper sets out key areas where cultural differences can lead to miscommunication and misunderstandings in court.
This was followed by a course for interpreters in early 1996 and since then members of Crown Office Policy Group have been regularly involved in providing training for interpreters.
At this time, however, the Crown Office did not have a developed policy on racial awareness although commitment to one was beginning to emerge. When Lord Hardie became Lord Advocate in 1997 he signed up to the leadership challenge, an initiative developed by the Commission for Racial Equality which invited those in positions of influence and authority in all areas of Scottish society to take an individual and personal lead in promoting the principles of racial equality, creating a climate for change and effecting change with the goal of eradicating racial discrimination. This was a significant move supported by the ministerial head of the Department.
In January 1998 Crown Office and Scottish Court Service published a joint statement on Crown witnesses. It committed both Departments to treating witnesses with courtesy in giving a prompt response to their inquiries including requests for information about case progress and disposal. It also required both organisations to treat all witnesses fairly and give consideration to their interests whatever their race, sex, religion, age or any special need.
Crown Office practice and policy guidance to the Service is by way of a Book of Regulations, which is regularly updated, and by the issue of Crown Office Circulars. In May 1998 Chapters 12 and 13 of this book, which deal with deaths and public inquiries, were revised and an annexe was included which contained information on religious and cultural requirements for various ethnic groups, which needed to be borne in mind by Fiscals when investigating deaths. During the summer of 1998 awareness raising seminars dealing with these chapters were held in Glasgow and Edinburgh for members of the Senior Civil Service.
As a result of a review and consolidation of existing policy guidance by Crown Office Policy Group in 1997/8 the Judicial Studies Board paper on body language and cross-cultural communication was re-issued to all legal and precognition staff in COPFS in August 1998. It sets out key areas where cultural differences can lead to miscommunication and misunderstandings in court.
In the meantime Parliament created new significant statutory provisions in the Crime and Disorder Act 1998. This created the statutory offences of racially aggravated harassment and racially aggravated behaviour. These came into force on 30 September 1998 by inserting Section 50(A) into the Criminal Law (Consolidation) (Scotland) Act 1995. We will return to this later.
By the late 1980s concern had been expressed by the Commission for Racial Equality about the little, if any, resort made to legislative provisions in cases where racial prejudice was apparently a factor.
Traditionally the general view in Crown Office was that such incidents could be better dealt with by the common law and that care would always be taken to bring to the attention of the court circumstances tending to suggest that racial prejudice, or indeed religious bigotry or similar prejudice, was a factor in the particular case.
Until 29 September 1998 there was no stated policy specifically on the subject of cases involving racial prejudice.
Prior to the enactment of the 1998 Act the Department consulted with the Commission for Racial Equality on what guidance should be issued to Fiscals. At that time the Lord Advocate Lord Hardie sent a draft of his intended guidelines to the CRE. This was the first time that a Lord Advocate had gone out to consultation in this manner. The guidelines took into account the comments of the Commission.
This guidance to Fiscals was issued on 29 September 1998 and again this will be dealt with later in more detail in our report, but a firm policy was adopted in the prosecution of these new offences. Lord Hardie repeatedly made the nature of the guidance public in speeches.
The Report of the Stephen Lawrence Inquiry
Following the Stephen Lawrence murder in England, Sir William MacPherson reported to the Home Secretary in February 1999 with a large number of recommendations. Recommendations 33 and 34 which were respectively a presumption in favour of prosecution and also that care should be taken to preserve any evidence of racial motivation when pleas were agreed, were accepted by Lord Hardie. Appropriate guidance was issued to Fiscals following that on 6 April 1999.
The MacPherson Report was discussed at a Senior Civil Service Seminar (consisting of all the Senior Civil Servant Fiscals in Scotland and Crown Office staff) in April 1999.
The definition of "institutional racism" is a difficult one for most organisations to understand and take on board but Lord Hardie's position, stated publicly, was that criminal justice agencies must assume that institutional racism exists or risk complacency.
Lord Hardie commissioned an action plan on race matters from Crown Office Policy Group which was completed in June 1999. This pre-dated the first of the Chhokar trials. The plan covered prosecution and also investigations of deaths, training, recruitment and retention and external relations.
There then followed a rollout of racial and cultural awareness training which started in September 1999. Training was to be cascaded through the then six Regions and all Regions were invited to seek input from Racial Equality Councils and other local community groups and this training was rolled out to the whole of the Service between September 1999 and May 2000. It included a cultural awareness guide. This guide gives a description of cultural aspects relating to Buddhists, Chinese, Hindus, Jews, Muslims, and Sikhs including details of religious beliefs, diet, naming systems and customs following death. It also contains contact details for the Commission for Racial Equality and Racial Equality Councils as well as local community and religious groups.
Internal debriefing indicated that the training had received a mixed reaction. It was felt by some that certain stereotypes were being reinforced. Evaluation forms were completed and then analysed by Crown Office staff. The results of that analysis indicated that some staff felt the training was helpful and they could benefit from more training. Some commented that they wished the training more focussed on their jobs and how it should impact on the individual. This initial training tried to cover all staff in one session which was fine for an introductory training session but needed to be reviewed.
The Department accepted that lessons had to be learned from this initial training and that there had been criticism that there was no consistency in the training across the Service and questions had been raised about how much of the training should be cascaded on a local basis and how much be delivered by a dedicated team visiting offices around the country. The training which had been delivered involved local offices contacting local Racial Equality Councils to assist in providing the training. This had the benefit in reflecting local differences in ethnic populations eg in Aberdeen there was a large Chinese community whereas other areas of the country had considerable Asian populations.
Crown Office staff were also included in this rollout of training and a number of Advocate Deputes also attended. The book prepared by the Judicial Studies Board in England was circulated to Advocate Deputes.
Crown Office and Procurator Fiscal Service also recognised the need to mainstream anti-racist training and this was taken forward by including appropriate content within existing training courses notably the core course for new legal staff and the precognition core course.
The in-house view was that this initial training was successful in achieving the overall aim of raising awareness of the issues.
Additionally, to meet the recognised need for mainstreaming anti-racist training the Race Strategy Group, chaired by the Solicitor General, commissioned work by Rowena Arshad of Edinburgh University to assist in determining the appropriate content of mainstreamed anti-racist training. This was recognised as a first step and that the commitment required to be ongoing.
A follow up report was submitted to COPFS in August 2002 and the current Diversity Awareness Programme was created.
We will return to the question of training later in our Chapter on Employment.
A number of strategic devices were used to take matters forward including the creation of the Race Team, Race Strategy Group, Equality Advisory Group and Area Race Resource Teams. These will be discussed in subsequent chapters.