Thematic report on Crown Office and Procurator Fiscal Service's response on race issues

Background

Our remit is to report on the Department's response on race issues. This is not restricted to race crime but how race crime is handled by the Department is a crucial part of its response on race issues generally.

Assessing the level of race crime is notoriously difficult. Available research and statistics on the subject certainly indicate an increase in the incidence of racial crime being reported to police in recent years. However, there is also evidence to suggest that many incidents go unreported and changing definitions make comparing statistics potentially misleading. What is clear is that it is not a new phenomenon; there were attacks on black people in Glasgow and other cities in 1919. While it is beyond the scope of this report to analyse the reasons for racism and racist offences suffice to say that the problem is deep rooted in society and unlikely to go away of its own accord.

"In Aberdeen the ethnic minority community is not aware of what it is entitled to in respect of racist incidents, eg an Asian guy is assaulted, do you report it? No, the police won't do anything. How do we educate the ethnic minorities and build trust?"(Minority ethnic focus group member, Aberdeen, 31 August 2004)

Although there were criminal provisions in the law directed at racism particularly in the Race Relations Act of 1976 and the Public Order Act of 1986 there was reliance by Fiscals on the common law. Fiscals were, however, encouraged by Crown Office policy to consider racial motivation in deciding whether a prosecution was in the public interest.

It was understood that Fiscals would use their discretion and exercise their legal judgement in considering any racially motivated case as they would in every case reported to them. There was, however, no stated policy specifically on the subject of cases involving racial prejudice.

"I think it (race crime policy) is a good thing. I think it is very helpful to people who are being abused."
(Witness 1, Court Survey, May 2004)

One interesting use of the Public Order Act 1986 was the 2002 Glasgow Sheriff Court case of David Wilson who was prosecuted for a Contravention of Section 19 1(a) of the 1986 Act in that he did in Pollokshields, Glasgow distribute written material which was threatening, abusive or insulting and did thereby intend to stir up racial hatred. The Sheriff had to decide first whether the material (in a leaflet distributed in Pollokshields in 2001) was threatening etc and second whether Mr Wilson delivered them with intent to stir up racial hatred. The Sheriff in finding Mr Wilson guilty held that the information contained in the leaflet was substantially inaccurate as it referred to a deteriorating situation in Pollokshields between the white and Muslim members of the community. This was contradicted by evidence from various sources including the West of Scotland Council for Racial Equality. The Sheriff went on to hold that the accused must have been aware that a high percentage of the community were black Muslims of Pakistani origin and held the leaflet was aimed at provoking ill feeling towards the Pakistani community and she therefore held the accused had distributed the leaflets with the intention of stirring up racial hatred as defined by the Act. This case is currently under appeal.

After the General Election in 1997 the incoming Labour Government in furtherance of a manifesto promise to create new offences of racially motivated violence and racial harassment passed the Crime and Disorder Act 1998 (hereinafter referred to as the 1998 Act).

"Years ago there was a bru ha-ha about domestic violence. At that time people were scared to report it. Now we've come to a point where it's not tolerated. We have to have that same bru ha-ha about racial abuse then people will report."
(Minority ethnic focus group member, Glasgow, 4 October 2004)

This created in Scotland the statutory offences of racially aggravated harassment and behaviour and also provided for racial aggravation in any offence to be taken into account by the court in determining the appropriate sentence.

Given its importance we quote the new offences in full. (The 1998 Act amended the 1995 Criminal Law (Consolidation) (Scotland) Act 1995.)

50(A) - (1) A person is guilty of an offence under this section if he -

(a) pursues a racially aggravated course of conduct which amounts to harassment of a person and -

(i) is intended to amount to harassment of that person; or
(ii) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person; or

(b) acts in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress.

In respect of Section 50A (1)(a) a course of conduct must involve conduct on at least 2 occasions (racially aggravated harassment).

Section 50A (1)(b), however, is obviously intended for use where there has been only one incident (racially aggravated conduct).

Subsection 2 defines that "a course of conduct or an action is racially aggravated if -

(a) immediately before, during or immediately after carrying out the course of conduct or action the offender evinces towards the person affected malice and ill-will based on that person's membership (or presumed membership) of a racial group; or

(b) the course of conduct or action is motivated (wholly or partly) by malice and ill will towards members of a racial group based on their membership of that group".

To prosecute these new offences there must be "corroborated evidence".

"Corroboration" is in itself a complex legal concept which is not part of the remit of this review but put in simple terms it means that a crime can only be prosecuted if there is evidence from more than one source

• that the crime was committed and
• that the accused was the perpetrator.

"Is there any way we can change the law on corroboration?"
(Minority ethnic focus group member, Glasgow, 9 September 2004

To try to overcome this difficulty the Grampian Racial Equality Council run courses for "volunteer witnesses" who will be an extra pair of ears and eyes at places such as homes and restaurants where there have been repeated instances of racist abuse. Local Fiscals have assisted in their training. We await with interest the use of such witnesses in court.

The 1998 Act however also introduced in Section 96 a statutory racially motivated aggravation that could be added on to any offence. The definitions of "racially aggravated", "membership" and "presumed" are identical to those contained in Section 50.

The aggravation only requires one source for proof. Because it is an aggravation rather than a separate offence Section 96 does not provide any specific penalty but provides that in sentencing the court shall take the aggravation into account in deciding the appropriate sentence (Section 96(5)). (In England there is Court of Appeal guidance providing for increased levels of sentencing in cases shown to be racially aggravated.)

Another important distinction between the two provisions is that on conviction for an offence involving racial harassment (contrary to Section 50A (1)(a) Procurators Fiscal may exercise discretion in seeking a non-harassment order under Section 234A of the Criminal Procedure (Scotland) Act 1995 and indeed a non-harassment order would be particularly appropriate in these circumstances. Breach of such an order would again be a criminal offence.

"People have to see it (race crime) as a major crime."
(Minority ethnic focus group member, Glasgow, 4 October 2004)

Crown Office took the unprecedented step of taking advice from the Commission for Racial Equality before issuing policy guidance to COPFS staff on implementation of these new provisions.

"Yes, it (race crime policy) is a good thing. It will help reduce racist crime."
(Witness 10, Court survey, September 2004)

The policy guidance (issued September 1998) indicated that the Lord Advocate as ministerial head of the prosecution service was committed to ensuring that all racially motivated crimes were treated seriously.

Procurators Fiscal were instructed (repeating instructions given in 1989) that racial motivation must always be taken into account when deciding whether a prosecution was in the public interest.

Fiscals were further directed

• that where the new statutory provisions applied in summary cases they should be used in preference to existing common law charges.
• Fiscal fines were not to be issued for any offence which was racially aggravated. (The Procurator Fiscal can offer to an accused person, in appropriate cases suitable for prosecution in the District Court, a conditional offer of a fixed penalty. If the penalty is paid then the accused is not prosecuted for the offence.)
• Proceedings were not to be taken in the District Court for any offence which was racially aggravated (the legislation did not debar this).
• To bear in mind a court's sentencing powers in deciding the appropriate forum in Section 96(1) cases to allow the court headroom to take into account the aggravation in determining the appropriate sentence.
• Warning letters were not to be used.

Fiscals were also reminded that if the facts proved did not amount to a contravention of the statutory provisions it might still be open to the court to convict of an appropriate common law offence. Styles of specimen charges were given to the Service to assist with drafting charges.

"Racist crime is a priority matter for prosecutors. The Lord Advocate has directed Procurators Fiscal that warnings and fiscal fines should never be issued in cases of racist crime……..we are taking such a robust stance because we are aware of the fears which exist in some communities in Scotland about reporting racist crime."
(Mrs Elish Angiolini, QC, Solicitor General, 26 February 2002)

The 1998 Act was followed by the publication of the MacPherson Report into the murder of Stephen Lawrence in February 1999. The then Lord Advocate Lord Hardie accepted recommendations 33 and 34 which were a presumption in favour of prosecution in race cases and that care should be taken to preserve any evidence of racial motivation if pleas were agreed.

Recommendation 12 of that report states that a racist incident is any incident that is perceived to be racist by the victim or any other person. The Scottish Executive has accepted this definition for the purposes of reporting and recording of racist crime.

"It is crucial that we are aware of the fact that an incident has been recorded as racist and of the perception of the individuals involved. This is to ensure that we communicate in an appropriate way with victims of crime."
(Solicitor General supra)

Further formal guidance was issued to COPFS staff in April 1999 which referred to the Lawrence Inquiry. Although the recommendations of the Inquiry related to England and Wales the Lord Advocate had given detailed consideration to the recommendations and instructed

• that there should be a rebuttable presumption that the public interest should be in favour of prosecution where evidence of racial motivation exists;
• that racial motivation was an aggravating factor which had bearing on the gravity of an offence and particular care should be taken at all stages of the prosecution to recognise and include reference to such evidence and to bring it to the attention of the court

and

• that pleas of guilty should not be accepted which excluded available and admissible evidence of racial motivation.

A very strong line was therefore taken at Crown Office as to how such cases should be prosecuted. One area of concern we came across in speaking to victims and defence solicitors was the counter allegation situation when on reporting a racist incident the suspect tells the police that he has been the victim of assault etc. Where there is sufficient evidence to support this, the police have little option but to charge the original complainers as well and report both to the Fiscal.

At all bar one of the focus groups held by the Inspectorate the race policy was considered a good thing. The exception being a focus group in Glasgow - "Fairness and equality we are looking for, not preferential treatment".
(Minority ethnic focus group member, Glasgow, 7 September 2004)

We feel that in the circumstances the police report should make very clear the likely true sequence of events and Fiscals should be alerted to the use of this as a tactic. Of course each case has to be looked at separately but awareness of this should enable informed decisions to be made.

In the main we found in the focus groups and interviews with witnesses at court that people did not know of the policy but most of them considered it to be a good thing.

"I think that this is a good thing, justice should be done and it is part of justice."
(Witness 1, Court survey, May 2004)

There were a few reservations -

"If someone commits a crime and he is sorry for that he should be given another chance. It is good that he pleads guilty and for the first time he should be forgiven. You ask again about how I feel about the plea of guilty with the racial motivation taken out and I think the best thing is to forgive."
(Witness 2, Court survey, June 2004)

"Equality for all sexes and races" was what was required and not preferential treatment.
(Minority ethnic focus group member, Glasgow, 7 September 2004)

It was suggested at a focus group for COPFS staff that the strict policy was a bit of a mixed blessing in court.

"We don't want special treatment, we want fair treatment."
(Minority ethnic focus group member, Glasgow, 7 September 2004)

On the one hand:-

• As it was such a strict policy solicitors in court understood that and this prevented fruitless discussion and argument.
• It sends out the message that race cases are taken seriously.
• It is seen as an attempt to change perceptions about how the Department deals with such issues.

But on the other hand: -

• Some COPFS legal staff are not keen on the rigidity of the policy which results in the rejection of reasonable pleas.
• They feel it can bring the Depute in court into ridicule.
• That it takes away from their professional status in the eyes of other professionals and the public.

"They can trust us with terrorism, murder and sexual abuse but not with a racist breach of the peace - what does that say about us?"
(COPFS staff focus group member, August 2004)

• The hard line policy annoys some sheriffs and defence agents who feel it is too rigid.
• The hard line on plea acceptance/rejection can cause difficulties for witnesses who are regularly subjected to racist abuse and who have to attend court regularly.

"One couple were not keen on the policy, they were forced into court, people won't plead."
(COPFS staff focus group member, August 2004)

A recent monitoring exercise carried out by COPFS which looked at all race offences reported by the police to Procurators Fiscal throughout Scotland revealed that a total of 439 cases were reported in a seven month period (1 October 2002-31 March 2003 and 1-31 October 2003).

We thought it would also be useful, therefore, to look at what actually happens to the charges reported to Fiscals by the police.

COPFS has a single corporate database which connects all Procurator Fiscal Offices and Crown Office units and facilitates the transfer of legal casework. In order to look at the take-up rate of charges reported to Fiscals we obtained an extract from the database, spanning the last 2 financial years, containing details of any charge with a racial element (hence all Section 50 charges and charges with a racial aggravation recorded against them, under Section 96). The following two tables present the findings.

Table 1 - Section 50 racial charges: number and percentage marked by Fiscal for proceedings, 2002-03 and 2003-04

	2002-03	2003-04
Section 50 racial charges	2,012 1	2,112 1
Charges marked by Fiscal for proceedings	1,714	1,871
Charges marked by Fiscal for proceedings	85%	89%

Table 2 - Charges with a racial aggravation recorded (under Section 96): number and percentage marked by Fiscal for proceedings, 2002-03 and 2003-04

	2002-03	2003-04
Charges with a racial aggravation (under Section 96)	765 1	877 1
Charges marked by Fiscal for proceedings	646	737
Charges marked by Fiscal for proceedings	84%	84%

These take-up rates would appear to indicate that the robust prosecution policy is being strictly applied. They compare with a proceedings rate of about 60% for all cases reported to the Fiscal where alternatives such as fiscal fines are allowed.

We also obtained data in relation to racial offences from the Scottish Executive Justice Department. This is presented separately in Annexe A.

Instructions and Monitoring

"In our core work of prosecution we take a vigorous anti-racist stance. We are committed to prosecuting cases of racist crime wherever there is sufficient evidence to do so….We have an extremely robust prosecution policy which seeks to implement the recommendations in the Lawrence Report and to reflect the expectations of Scottish society."
(Mrs Elish Angiolini, QC, Solicitor General, February 2002)

In furtherance of this robust approach the Lord Advocate issued guidelines to the police on reporting of racist crime and also issued instructions to Procurators Fiscal on how such cases were to be prosecuted. In addition monitoring arrangements were put in place to measure and ensure compliance with these guidelines.

The police instruction included reference to the Lawrence definition of a racist incident as being any incident perceived to be racist by the victim or any other person and the police were instructed to advise the prosecutor whether the victim or any other person perceived the incident to be racist. The police were advised that victims might be reluctant to express their fears or beliefs and that every effort should be made to ascertain the true perception of the victim. The Fiscal was to be provided with a copy of the Racial Incident Monitoring Form.

"I hope it (race policy) makes it easier for people to come forward."
(Minority ethnic focus group member, Glasgow, 9 August 2004)

A second set of guidelines was issued by the Lord Advocate to the police in April 2002. These are reproduced in full at Annexe C. There was a recognition that the prosecutor needed good quality police reports to take sensible informed decisions and the second set of guidelines emphasised the need to tell the prosecutor of the perception of the victim or other person (although there had to be evidence not just the subjective opinion of the victim).

"We, the community can be confident that something is being done and we are not being ignored."
(Minority ethnic focus group member, Glasgow, 9 August 2004)

The Racial Incident Monitoring Form included details on ethnicity and the language needs of the victim (arrangements were made between the Department and the police to standardise this form). Failure to lodge the form with the Fiscal was brought to the attention of Police Divisional Commanders and to Chief Constables by (then) Regional Fiscals.

The method of reporting cases to the Fiscal was also included in these guidelines. The accused was to be reported either in custody (ie arrested and kept in police custody pending appearance in court on the first lawful day after arrest) or liberated on an 'undertaking' to appear in court on a specific date (the accused is freed on his agreement to appear on that date).

Only in exceptional cases was such an accused to be charged and liberated on report to the Fiscal (where no court date is initially set). The whole point of this instruction was to ensure that cases of racist crime were fast tracked. After appearing in court Fiscals were instructed to request early trial diets in the event of a plea of not guilty (similar instructions had been given to fast track drink/driving offences).

The report was to cover the impact of the crime on the victim including financial loss.

Especially important (post Chhokar) the guidelines required the police to include an assessment of language needs of the victim, witness or accused and asked to state their 'first' or preferred language and include details of whether correspondence would need to be translated. The report was to include dialect required as well as language and state explicitly when an interpreter would not be required.

"The police get an interpreter for the offender but not for the victim. They are very careful in observing procedure with the offender."
(Minority ethnic focus group member, Glasgow, 7 September 2004)

Detailed instructions were given in relation to death cases. These will be examined in our next report.

Monitoring was rightly seen as a vital point of this process and the instructions required the Regional Fiscals (now Area Fiscals) to include the monitoring of the guidelines as part of their existing regional monitoring duties.

A slight relaxation of the policy took place in June 2004 when warning letters were allowed in "very exceptional" circumstances and under the personal instruction of the Area Fiscal. Again a monitoring exercise is in place for the first 6 months.

A centralised Crown Office monitoring exercise was also undertaken which examined all relevant police reports submitted by the police between 1 July and 31 October 2000. This showed Fiscal compliance with the then guidelines at 94.8% of the cases examined.

A second Crown Office monitoring exercise took place, as mentioned earlier in the chapter, covering the period 1 October 2002 to 31 March 2003 and 1-31 October 2003. This looked at police performance against the Lord Advocate's Guidelines and showed an improving picture eg 93% of cases were correctly identified by the police as having a racist element. Fiscals were found to have complied with the guidelines in 97% of cases. These results were published. Close co-operation continues between COPFS and the police regarding police compliance with the Lord Advocate's Guidelines.

We decided to look at the extract we obtained from the COPFS database as an additional check on Fiscal compliance since it would indicate any obvious breach of the policy. The data recorded on the system tended to confirm the Departmental analysis of compliance with policy.

As part of the future work of the Inspectorate regular audits of offices will take place. As the first of these, this year we audited the Hamilton office to check for compliance with the race policy.

We found that they had a particularly sophisticated system for monitoring race cases which could be used as an example for other offices.

The Department has also been working closely with the police to 'automate' the information required to be submitted to the Fiscal in the standard police report. This means that the Reporting Officer will have to address the relevant issues before the report can be sent.

Monitoring of compliance with these directives is placed firmly on the shoulders of the Area Fiscal who is personally responsible for compliance.

A member of legal staff 'marks' (ie decides what action to take) every report of a racist incident and the District Fiscal checks each case for compliance with the policy. The form is then forwarded to the Area Fiscal with a copy of the police report. The Area Fiscal then reports to Crown Office and the Race Strategy Group. (New arrangements are in place which we discuss later.)

The change in the reporting arrangements seems like a good time to clarify what is expected. The monitoring is effective; our only concern was that there was some sign of inconsistency between Areas as to who did what. The results of the central monitoring show that the policy is well understood and implemented to a high degree. It underlines the commitment of the Department (and frontline staff) to deliver.

At one focus group in Glasgow in August 2004 members of the minority ethnic community indicated that they were impressed by such vigilance.

A number of witnesses were seen at court as part of a survey exercise and although the number was small, 10 in all, the analysis of their comments was interesting.

We found that:

• 90% of witnesses had a positive impression of the treatment they received at court.
• 88% had a positive impression of the investigation and, where appropriate, precognition of the case.
• In 63% of the cases the motive for the offence was perceived as a racial one. The remaining 37% concerned instances of domestic abuse.
• In 80% of the cases the witnesses did not know Crown Office policy on the prosecution of crimes with a racial element.
• 100% of witnesses were happy with the language match with the interpreter at court.

Conclusion

A robust prosecution policy has therefore been put in place and effective monitoring arrangements exist to ensure compliance. This is very important in our view, despite some staff misgivings, as it should enhance confidence in minority ethnic communities that the Department takes race crime very seriously. We know of no other policy which is so closely monitored. The detailed instructions given by the Lord Advocate to the police and Fiscals underline that this is a central plank of Crown Office Policy.