Chapter 5. Consultation
The Crown Office and Procurator Fiscal Service is Scotland's sole national prosecution service. Its stated main aim is to provide an independent modern prosecution service for the 21 st century - committed to professional excellence, pursuing cases fairly and consistently in the public interest and being responsive to public needs.
The Department stresses that it acts in "the public interest". One aspect of this is that the prosecutor may have to take a wider view than that purely of the victim or witness and can and must on occasions act against the wishes of victims and witnesses. Domestic abuse cases can for example fall into this category where the victim may wish to withdraw the complaint.
"If there is the will and genuine commitment to people it will bear results. Is there that commitment?"
(Minority ethnic focus group member, Aberdeen, 31 August 2004)
However, this begs the question of how the public interest can be gauged. The prosecution code contains a number of pointers which would indicate desirability of a prosecution in the public interest including obvious factors such as the seriousness of the offence and impact on the victim.
At the extremes the prosecution decision is relatively straightforward, clearly no one would suggest that it would not be in the public interest to prosecute murders, rapes etc. However the situation becomes more difficult at the margins.
This chapter will look at ways in which the Department tries to contact and engage with the public it serves.
As stated elsewhere a robust prosecution policy on racist crime was put in place following the commencement of the Crime and Disorder Act 1998. Uniquely this was after consultation with the Commission for Racial Equality.
We highlighted the views of a number of individual victims and witnesses in our Chapter on Race Crime and the support for the hard line taken by the Department.
A number of devices have been put in place to try and forge links with the community, these include -
The Race (now Diversity) Strategy Group
This Group was set up in July 2000 under the Chairmanship of the then Solicitor General Neil Davidson, QC with the following remit:-
"To develop the Departmental strategy for race issues and to ensure, oversee and monitor its implementation, including the commitments in the Strategic Plan for 2000-2003."
The Race Strategy Group also monitors the work of the Race Team. The Race Team (now Diversity Team) was set up to develop and support the implementation of the Race Equality Action Plan (REAP) as required by the Race Relations (Amendment) Act 2000. It forms part of the Crown Office Policy Unit. It also provides guidance and advice to the Area Diversity Resource Teams and acts as a link between them (in the field) and the Crown Office (at the centre). It is also responsible for delivering the Department's Diversity Awareness Programme and provides the secretariat for the Equality Advisory Group.
"You must give people a way to express their concerns."
(Minority ethnic focus group member, Glasgow, 9 August 2004)
The Race Relations (Amendment) Act 2000 came into force on 2 April 2001. The Act introduced a general duty on all public authorities to promote race equality. It requires all public authorities to take active steps to meet the new requirements. It gives the Commission for Racial Equality a central role in developing and monitoring equality standards and practices. The duty to promote race equality is imposed by Section 2 and states that "such bodies in carrying out its functions shall have due regard to the need -
(a) to eliminate unlawful racial discrimination and
(b) to promote equality of opportunity and good relations between persons of different racial groups".
This is the general duty imposed by the Act and it is incumbent on the Lord Advocate and Solicitor General as Law Officers. As a result of the operation of the Scotland Act 1998 this duty also extends to the office of Procurator Fiscal and Procurator Fiscal Depute.
The general duty requires public authorities to be pro-active in promoting racial equality. This duty was taken seriously by Crown Office and Procurator Fiscal Service (as it had to be) and is reflected in the work of the Race (now Diversity) Strategy Group and the establishment of first Regional and latterly Area Resource Teams.
"The challenge is engaging and being equal with every community."
(Crown Office and Procurator Fiscal Service Manager, September 2004)
The general duty was added to by the creation of specific duties to promote race equality to be imposed on all public bodies to which the general duty applied. These have been imposed by secondary legislation and set out in more detail the action public authorities are required to take in order to comply with the general duty to promote race equality.
The Race Relations (Specific Duties Order) Scotland 2002 imposes the following specific duties -
- that public authorities prepare and publish a Race Equality Scheme by 30 November 2002 setting out how they intend to meet their obligations under the general duty and any other proposed specific duties to promote race equality which are relevant to their work;
- that public authorities assess which of their functions and policies are relevant to the general duty with regular subsequent reviews (presently 3-yearly);
- that public authorities set out their arrangements for assessing and consulting on the impact on the promotion of race equality of policies it is proposing for adoption;
- that public authorities set out their arrangements for monitoring for any adverse impact on the promotion of race equality of policies it has adopted or is proposing for adoption;
- that public authorities set out their arrangements for publishing the results of assessments, consultation and monitoring;
- that public authorities set out their arrangements for ensuring that minorities have access to information and to services they provide;
- that public authorities set out their arrangements for training staff on issues relevant to the duty to promote race equality.
The obligation to produce the Race Equality Scheme rests on Scottish Ministers collectively. The Scottish Executive published an overarching Racial Equality Scheme. The Crown Office and Procurator Fiscal Service published a detailed Race Equality Action Plan to guide the work of the Department on race equality matters (covering the period November 2002 - November 2005).
The Commission for Racial Equality has produced a number of useful guidance documents and a Code of Practice.
As stated the Diversity Strategy Group has as one of its core functions the monitoring of the Race Equality Action Plan. The Group meets every quarter and does not have a fixed agenda. Its membership includes in addition to the Solicitor General who chairs the meeting, the Crown Agent, Chief Executive, Deputy Crown Agent, Head of Policy, Area Procurator Fiscal (Glasgow) and representatives of the Race Team. Members of the Human Resources Department and Press Office also usually attend.
The Diversity Strategy Group in renaming itself was in line with developments elsewhere in aligning race, gender and disability issues contained in the Government's white paper "Fairness for All". A Diversity Action Plan 2004-2005 was prepared. This was a commitment within the Crown Office and Procurator Fiscal Service Race Equality Plan.
One of the principal tasks of the Diversity Strategy Group is to evaluate how well the Department has performed in meeting its public commitments in the Race Equality Action Plan and to consider the extent to which performance and experience has impacted on years 2 and 3 and to outline recommendations for year 4.
The Crown Office is part of the Scottish Executive-wide Race Equality Scheme Implementation Group (RESIG). This was set up to assist the Departments in producing valid Race Equality Schemes and to monitor progress. The Crown Office REAP has received favourable comment in this forum.
The first year of the Race Equality Action Plan was an opportunity to put in place competent mechanisms and systems that would ensure existing and developing policies build in an impact assessment tool to determine how successful or otherwise they have been. This is a difficult area and one which the Commission for Racial Equality has been working on. In conjunction with the Home Office Racial Equality Unit the Commission for Racial Equality has been developing a framework for carrying out a Race Equality Impact Assessment (REIA). The guidance on this was made available on a website commencing in August 2004. As well as the guidance the website includes important statistical data, links to relevant and other publications and a list of useful contacts.
One of the stated aims of the Commission for Racial Equality in creating the website is to help senior managers use it as a tool to improve their baseline performance and compliance with their duties under the Act. One reason for its creation was frequent requests to the Commission for Racial Equality from authorities about further support, advice and guidance on conducting impact assessments.
Given its importance as a central plank of the race equality strategy of Crown Office the Race Equality Action Plan is considered in a separate chapter.
As indicated elsewhere we have included in this report the specific areas of complaint in the Jandoo report to see how the Department reacted to these strictures and the action taken in the meantime to meet the criticism.
In addition to that we have devoted a whole Chapter to Race Crime which although not at the centre of the Jandoo report is clearly at the centre of the Crown Office's response on race issues.
The Diversity Strategy Group has an important function in monitoring centrally the operation of the Race Equality Action Plan. Much of the day-to-day work is done by the Race Team which is widely respected and dedicated to its task.
Impact assessment could be said to be at the heart of much of the thrust of the 2000 Act and was seen to be a difficult area.
Guidance from the Commission for Racial Equality indicated that all policies should be screened for relevance to the statutory general duty to promote race equality.
"We've had the Race Relations Act since 1976 and a lot of things did not happen."
(Minority ethnic focus group member, Glasgow, 9 September 2004)
This screening process should help to identify if the policy could lead to differential impact on different groups, whether groups may have particular needs, or if the policy could provide an opportunity to promote good race relations.
"They've taken away the temporary posts and that was one of the vehicles for getting ethnic minority people into the job. This disproportionately affects the ethnic minorities."
(Minority ethnic focus group member, Glasgow, 14 October 2004)
The Race Team in order to assist in this process produced a guide to diversity proofing of policy and practice.
In describing this the Department emphasises that it is important to remember that the commitment to race equality and to the wider diversity agenda is very much the long term and not to be viewed simply as a 3-year project plan.
"The guiding principle behind the "proofing" of existing and future policies is that they should be "proofed", not only for considerations of race but also for other aspects of diversity including sexual orientation, gender, age, disability, religious belief, mental impairment and any other minority group that may have an interest in the particular policy area under consideration."
(Crown Office Diversity Proofing Guidance)
Although this particular impetus stems from the Race Relations (Amendment) Act 2000 it sits well with a Department which is committed to prosecution and making decisions "in the public interest". These are specific ways of assessing, gauging and allowing perceived interest to frame policies. The stated aim is to ensure that the Department is taking into consideration and where reasonable meeting the needs of all individuals from all parts of society. It gives as an example in the case of people from the minority ethnic groups effective systems of provision of interpreting and translation services and also ensuring that staff are aware of Departmental racial and cultural awareness guidance material.
The Equality Advisory Group
In the Race Equality Action Plan in the section dealing with consultation and impact of policy in addition to the various consultations with the Commission for Racial Equality and Race Equality Councils mentioned therein there is also a commitment to establish an Equality Advisory Group. This is to provide advice and assistance to the Department in the development of policy and in particular to provide it with an assessment of the likely impact of its proposed policies on race equality. The plan was to establish this group initially as a pilot for one year to be created during the first year of the plan.
The formal remit of this group, which met for the first time in June 2003, was to provide independent expert advice to the Crown Office and Procurator Fiscal Service on
- the impact or likely impact of its existing and future policies on equality issues;
- any racial, religious and cultural issues which arise in criminal cases and in particular the likely liaison needs of bereaved relatives from a minority ethnic or religious community.
"Be aware of our cultural differences."
(Minority ethnic focus group member, Glasgow, 9 August 2004)
Its membership is drawn from a selection of people with an interest and experience of race equality matters including academics with an interest in this area and people working in race equality organisations.
The creation of the Equality Advisory Group has been an attempt to introduce another measure of public scrutiny into policy development and provide a forum for feedback on the likely impact of policies.
At the time of writing this report the Group had met 6 times commencing on 6 June 2003, it aims to meet quarterly. The first meeting was attended by the Solicitor General (Elish Angiolini, QC). The secretariat is provided by the Crown Office Race Team (now Diversity Team).
It was the intention over the first 12 months for the group to concentrate on racial issues and then broaden its focus to include other diversity issues such as disability, age, gender, sexual orientation and religion. It was intended to review the work of the group annually and that membership would last for approximately 2 years. Initially there were 6 non-Crown Office members and 3 Crown Office members including the Head of Policy, an Area Fiscal and Head of the Diversity Team. A member of the Inspectorate Team was present at most of the meetings.
The creation of the Equality Advisory Group was issued to the press in May 2003 by way of a news release which emphasised that the views of members of Scotland's minority ethnic communities were vital to the development of race policy at the Crown Office.
In the press statement the Solicitor General, emphasising the importance of input from minority ethnic communities in developing race equality policy, said
" This is a long-term initiative for the Department and one that we are firmly committed to see through to fruition. There are no easy answers and no room for shortcuts. We are actively looking to engage with those who have a genuine interest in this area. We welcome comment and constructive feedback. Our development is dependant on taking note and responding to issues of public concern wherever possible."
Over the course of the past 18 months the group has considered a number of topics including
- Diversity training for staff;
- The provision of interpreters and translations;
- Racially motivated crime;
- Hate crime;
- Impact assessment;
- Diversity proofing;
- Crown Office internal staff Fair Treatment Policy;
- Video Identification Parades (VIPER);
- Driver Improvement Scheme (a new diversion scheme for dealing with "careless" drivers (S3 of the Road Traffic Act 1988);
- Deaths Manual (this is advice and instructions given to Crown Office staff centrally);
- Forensic Pathology (this was a leaflet for relatives of deceased persons);
- Figures on police compliance with the Lord Advocate's Guidelines on race crime.
In line with its commitment to review itself after one year a discussion paper was issued for the meeting on 14 May 2004 on the future direction of the group and inviting members to consider whether it would be appropriate and timely to look at its remit, structure and performance during its first year.
There was acknowledgement that there was a time implication in referring policy material to the group and heavy demands made on members' time. The Fair Treatment Policy was a good example of both of these problems being a somewhat complex and lengthy document. A greater steer as to what parts of new policy might usefully be considered was suggested as was expanding the group although too large a group was deemed to be unhelpful. Two new members agreed to join the group, one from the Equalities Network and one from a disability training background.
The group as stated is examining its own working practices and future direction. It has probably been most concerned with the Diversity Awareness rollout to staff and the effectiveness of that including feedback from the organisers and trainers and also has been active in the area of race and hate crime. Although its existence and minutes of its meetings are posted on the Crown Office Intranet it is probably fair to say that it has not as yet been used as extensively as hoped by Fiscals "in the field" as opposed to central policy staff. This is likely to develop and Fiscals are encouraged to refer policy issues to it. This may necessitate different working practices in the future and possible use of sub-groups to study issues and report back to the main group.
Its existence was commented favourably on in the first annual report of the Scottish Executive on its Race Equality Scheme. In its report it quotes the creation of the group as an example of good practice and states that the group brings independent views on policies from experts and explores how Departments can engage with them. The membership it states was deliberately chosen to include constructive critics and to be an independent body to provide constructive criticism.
It is clearly a worthwhile initiative and it is expected that it will continue to develop and assist the Department in formulating policies and assessing their impact on minority ethnic and other communities.
Area Resource Teams
Area Resource Teams (which replaced Regional Resource Teams) were established in 2002.
Their remit and role was
To implement the Departmental strategy on race issues wherever relevant within the Area context and in particular have regard to:-
- The monitoring of prosecution policy on racist crime (including the quality of police reports submitted in line with the Lord Advocate's Guidelines);
- Racial Equality Training at Area level (including Area induction training);
- Recruitment issues (including a programme of positive action in liaison with the Departmental Human Resources Division);
- Issues of translation and interpreting (including the implementation and monitoring of Departmental guidance);
- The need to establish and maintain positive relationships with minority ethnic communities and organisations (such as Racial Equality Councils) and
- The need to participate in local MARIM (Multi-Agency Racist Incident Monitoring) and community safety groups.
The previous Regional Resource Teams had fulfilled similar functions, the Department recognising that the people involved were committed to improving policy and practice in this area frequently in their own unpaid time.
"People are enthusiastic and volunteer in their own time."
(Crown Office and Procurator Fiscal Service Manager, September 2004)
The new Area Resource Teams came into being as a result of the restructuring of the Procurator Fiscal Service.
Instructions from Crown Office were issued in September 2002 requiring each Area Fiscal to establish an Area Resource Team. Adjoining areas were encouraged to join up for meetings to share good practice and ideas. The previous Regional Teams had consisted of staff at different levels both legal and administrative. The work of the Area Teams was seen as key to achieving the Department's diversity/equality objectives and an essential part of the overall restructuring exercise. Area Fiscals were encouraged to take stock of their inheritance and decide how to deliver the requirements of the Departmental race strategy in their area.
"You have to find a way of supporting community groups and outreach work."
(Minority ethnic focus group member, Aberdeen, August 2004)
The actual composition of the new teams was left to the discretion of the Area Fiscals and acknowledgement was made of the fact that the work could be time-consuming. A mix of both legal and administrative staff was encouraged and it was considered important to ask representatives of the relevant Racial Equality Council to form part of the team or at least to attend the meetings. The Area Fiscal and the Area Business Manager were encouraged to be part of the team. Crown Office would keep a central register of members.
Quarterly reports were to be submitted to the Race Strategy Group a week in advance of scheduled quarterly meetings chaired by the Solicitor General with a senior member of each team expected to be present to "speak" to the area report. A style of report was issued outlining the areas to be covered by the report, these included:-
- Prosecution Policy
This included the monitoring of race cases and the Law Officers made it clear they expected the Area Fiscals to take personal responsibility for this monitoring and to see police reports after the initial marking stage and at the conclusion of the case. This was to ensure that both the police had complied with the Lord Advocate's Guidelines and that prosecutors also complied with their instructions.
A style of monitoring form previously used by some Regional Fiscals was advocated as a useful tool.
Areas were reminded that there would be central monitoring of compliance in this area (referred to in our Chapter on Race Crime).
- Racial Equality Training
The quarterly reports were to include a return on recent and proposed training at Area level outlining the racial equality components.
Area Teams were encouraged to continue "outreach" work eg attending careers fairs and visiting schools etc. This was described as a "key" role for Area Teams. This was seen as important not only for recruitment purposes but for regaining the trust of minority ethnic communities.
- Interpreting and Translating
Areas were encouraged to strengthen links with local interpreting services and use of Language Line (installed in all offices).
- External Relations
Areas were expected to report on relations with Racial Equality Councils and MARIM groups. The report was to cover other networking initiatives.
A guidance pack was prepared by the Crown Office Race Team which was a consolidation of ideas and included speeches, PowerPoint presentations and guidance on how to run induction programmes. This has been made available to all on the Crown Office Intranet.
Much good work was seen to be done by the Area Resource Teams including an array of sponsored events. For example the Glasgow office sponsored an event targeted at ladies from a minority ethnic background on 12 November 2003 which was well received.
With 11 Areas spread over the whole of Scotland it was not feasible to visit all and a questionnaire was sent out to all Area Fiscals asking for feedback on a number of areas. The responses indicate that:-
- All Areas used both legal and administrative staff for the Teams, minority ethnic staff were not specifically targeted;
- In 7 cases wider diversity issues were considered, only 4 Areas limiting themselves to race;
- Minutes were kept in all cases, usually sent to team members and in some cases put in common folders;
- 6 Areas had "specialist" race Deputes;
- 3 Areas had members particularly trained in the race arena eg by attending the University of Paisley course on Race Equality;
- The Area Fiscal accepted responsibility for collating the race crime statistics but only 2 said they read all the cases;
- Failures on the part of the police to comply with the Lord Advocate's Guidelines would be brought to their attention in 10 cases, curiously in one case no referral would be made although our question prompted a change of view;
- 7 Areas had sponsored specific events;
- 8 Areas had links to other ethnic minority groups in the local community.
Overall the Area Resource Teams were and are a major outreach initiative. In Strathclyde the 4 Area Fiscals had the benefit of secondees from the West of Scotland Racial Equality Council who assisted with the work of their groups. This was the most "formal" arrangement but other more informal arrangements existed elsewhere.
"You have to have meetings in the ethnic minority communities and say what you do."
(Minority ethnic focus group member, Aberdeen, August 2004)
Our only concern was with maintaining the momentum. It was not always clear that Areas understood fully their obligations to monitor race cases and there was a danger of slippage. We would have made recommendations for maintaining the momentum but the Crown Office itself decided in October 2004 to make changes. The national (quarterly) team meetings would no longer take place. This function was to be taken over by the Legal and Policy Forum and the Management Board on a 3-monthly basis.
The Legal and Policy Forum consists of the Chief Executive, Crown Agent, all 11 Area Fiscals and other senior management figures. Its remit is to take the lead in the development of prosecution policy and consider legal and operational issues within COPFS. It meets monthly at different locations around the country.
The Management Board consists of the Chief Executive, Crown Agent, 3 of the principal Area Fiscals and other senior COPFS staff and deals with overall strategy. It also meets monthly.
Reports from these would be considered at 6-monthly meetings of the Diversity Strategy Group (formerly the Race Strategy Group). This will continue to be chaired by the Solicitor General. It cannot be over-emphasised that this steer from one of the Law Officers sends a signal to the Department of the continuing importance of this work. It was acknowledged that it was difficult for various reasons to maintain the quarterly national meetings.
The Legal and Policy Forum and the Management Board would assume this mantle. The Legal and Policy Forum would have reports from Areas as a standing agenda item. The emphasis at the Management Board would be on strategic diversity issues relating to the workforce, Human Resources policy, training and development, accommodation and estates issues. Both groups would have responsibility for monitoring the Race Equality Action Plan (REAP).
The proposed use of the Legal and Policy Forum and the Management Board as places for assessing diversity performance and testing policy and strategy is intended to allow reports from them to inform the Diversity Strategy Group in its higher strategic function. The Chief Executive and/or Crown Agent would report on a 6-monthly basis to the Diversity Strategy Group.
The Inspectorate is committed in terms of the Jandoo Action Plan to regularly "audit" Area and District Offices for compliance with policy and guidance and this will afford an opportunity to revisit this area of work and monitor progress on the new system.
We would, however, recommend that the guidance on the collection of race crime statistics be beefed up to make it clear who is expected to read reports and submit statistics.
As stated in the section on Area Resource Teams the Diversity Strategy Group is changing. It was the Jandoo Report which prompted the creation of the then Race Strategy Group. This could be seen as (quite properly) an emergency reaction to deal with a major problem and inevitably as time has gone by the focus has shifted. The Jandoo recommendations have been included in the Department's Race Equality Action Plan and compliance monitored. The Department feels it is time now for the Diversity Strategy Group to focus on the practical aspects of proving the Department's compliance with diversity matters. The emphasis generally has shifted from systems to results.
The Legal and Policy Forum and the Management Board will now be the places for assessing Departmental diversity performance and testing policy and strategy. The shift from systems to results means that the work of the Legal and Policy Forum and the Management Board will be essentially evidence gathering while the Diversity Strategy Group will concentrate on oversight and higher level consideration of strategy.
This change was taking place as we went "to press". The Inspectorate will be interested to see how this develops.
Overall so far as outreach initiatives are concerned the Department has in our view gone to considerable lengths to address the perception of a remote organisation detached from the public it serves and not accountable for its actions.
The importance of leadership from the top both at senior management and ministerial level cannot be over-emphasised and has been frequently commented on to us in the course of preparing this report. The Department has been in the van of new initiatives in creating Area Resource Teams and the Equality Advisory Group. Although we have some detailed comments on the operation of these they represent a considerable investment by the Department in trying to re-establish itself in the minds of the public. It is clear to us that there is a considerable appetite for more information about what the Department does and how it operates (this of course is not limited to the minority ethnic communities) and the more it can raise its profile the better the overall perception will be.
"It is an important commitment to speak to the community."
(Minority ethnic focus group member, Glasgow, 9 August 2004)
That the Department heightens its public profile, nationally and at local level.
Our main concern is that so much of the current work is down to the willingness of a cross-section of staff to give of their time to do this. It would, we feel, be helpful if instead of an "add on" that this contact function including attending schools, local events etc could become the work of a group of individuals who could in this way augment the work of the Area Resource Teams. This would lead to better integration of this work.
Our overall view is that while inevitably much of this is work in progress nevertheless the Department has made significant strides in improving itself and keeping in touch with the diverse public it serves.