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

Dr Jandoo's report was published in October 2001 and the Scottish Parliament debated it on 7 November 2001.

As stated Dr Jandoo's main findings were that the Crown Office and Procurator Fiscal Service had failed to liaise appropriately with the bereaved relatives and partner of Surjit Singh Chhokar. He found evidence of institutional racism in the handling of liaison arrangements with the bereaved relatives and partner in particular the failure to translate correspondence to the parents together with a failure to have adequate cultural awareness material available to Fiscals. There was also a failure to recognise the need for interpreting services for the parents at the first trial in 1998.

Following publication of Dr Jandoo's report, the Lord Advocate and Minister for Justice accepted all recommendations in the report and a commitment was made to learn from the mistakes. This report has as one of its principal aims an analysis of how far the Department has moved in the past 6 years and learned from the mistakes made. Public confidence in the prosecution system was at stake.

"People feel that in the Chhokar case that people did not feel the death of an Asian was important enough and there was not the commitment to take cases like this."
(Minority ethnic focus group member, Glasgow, 9 September 2004)

Dr Jandoo in his report made 40 recommendations, some aimed at the Crown Office singly, some at the Crown Office and Police jointly, some at the Police singly, one at the Scottish Executive Justice Department and one at the Law Society of Scotland (on the guidance on the selection, vetting and training of Precognition Agents and a code of practice for them).

Having accepted all of Dr Jandoo's recommendations the Department lost no time in devising an implementation strategy. A 'Jandoo' Action Plan was devised dealing with his recommendations, which were specific to the Department or joint with the police.

The Plan detailed the relevant 'Jandoo' recommendations and outlined what the Department would do and by when. In our view this was a sensible and logical approach to the recommendations and provided an immediate template against which progress could be measured. It enabled the then recently formed Race Strategy Group to have a means to measure and monitor progress. The Department has continued to review the plan (as recently as June 2004) and itself highlights the following as key milestones:-

• Lord Advocate's Guidelines to Chief Constables in June 2001 (revised February 2002) in which the language and cultural needs of bereaved relatives are required to be addressed in police reports;
• Systems to facilitate translation of correspondence established;
• Race Strategy Group and Area Teams established to lead on development of Race Strategy (now Diversity);
• A joint working group on race issues established with Association of Chief Police Officers in Scotland (ACPOS);
• The creation of the departmental Race (now Diversity) Team to deliver implementation of the Jandoo recommendations and requirements of the Race Relations (Amendment) Act 2000;
• Departmental membership of the Scottish Executive Race Equality Scheme Implementation Group (RESIG);
• Establishment of the Victim Information and Advice office to cover inter alia victims in all cases of racist crime;
• The rollout of a 2-day Diversity Awareness course for every member of the Department;
• The creation of a working group on the provision of interpreting and translation services involving the Department, ACPOS, the Scottish Court Service and the Law Society of Scotland;
• The creation of an Equality Advisory Group to provide guidance and assistance on the development of policy within the Department and in particular to help assess the impact of departmental policies on race equality.

The Jandoo Plan was published in 2001 with a commitment to deliver on its terms.

Many of the recommendations have been reviewed elsewhere in this report particularly those relating to interpreters (Jandoo recommendation 10), the Race Strategy Group (Jandoo recommendation 12), the establishment of Area Race Teams (Jandoo recommendation 14), the gathering of information of the ethnic origin of service users (Jandoo recommendation 15), the creation of a Cultural Awareness Guide (Jandoo recommendation 16), the translation of documents (Jandoo recommendation 17), the requirements of the Standard Police Report in relation to the language needs of witnesses/next of kin (Jandoo recommendation 24), the respecting of funeral arrangements (Jandoo recommendation 36).

Some of the other recommendations will be considered in our next report on victims and witnesses generally.

The approach to the implementation of Dr Jandoo's recommendations has been thorough and largely achieved. Our comments elsewhere relate to detail, overall the commitment to deliver on its terms has been extensively met.

The Chhokar case started in 1998. For comparison purposes we have looked at the way a more recent murder involving a Kurdish Asylum Seeker was handled. Firsat Dag was fatally stabbed in Sighthill, Glasgow on 5 August 2001. On 18 August 2001 the police arrested Scott Burrell and charged him with the murder. On 7 December 2001 his trial and that of a co-accused started in Glasgow. On 13 December 2001 the jury were told that Mr Dag's murder was no longer being treated as a racial killing. The indictment (ie the charge) had initially alleged that there was a racial aspect to the killing. The jury then convicted Burrell of the murder and on 14 December 2001 he was sentenced to life imprisonment.

As part of the lead up to the case two uncles of the deceased came across from Turkey and with the aid of an interpreter were seen by a member of the Fiscal's staff and the process explained to them. The family back in Turkey were also kept up-to-date using a local interpreter.

Prior to the trial it was decided to cite the two uncles and also arrange for the deceased's father to travel from Turkey. The Glasgow Fiscal's Office arranged this.

The two uncles and the father were met by police at the airport, taken to a hotel and a member of the Fiscal's staff preparing the case kept in contact with them. He met with them and through an interpreter the procedure was explained to them.

During the trial they sat in the public gallery with the aid of an interpreter and at the lunch break and at the end of each court day they were seen by a member of the Fiscal's staff and any questions answered. Arrangements were always at hand to have them escorted to and from the court by Police Family Liaison Officers.

The main witness was also a young Asylum Seeker friend of the deceased and arrangements were made for him to meet with the interpreter to be used in court prior to him giving evidence. The indictment was also translated into Turkish and a copy provided for the family.

At the conclusion of the trial the Advocate Depute (the prosecutor) spoke to the family who thanked him and the Fiscal's staff for their efforts.

This in our opinion shows that the lessons of the Chhokar case had been learned and put into practice and hopefully will be closer to the norm from now on.

The Race Equality Scheme and Race Equality Action Plan

The 2000 Race Relations (Amendment) Act required public authorities to prepare and publish a Race Equality Scheme by 30 November 2002 setting out how they intended to meet the obligations under the general duty and any other proposed specific duties to promote race equality which were relevant to their work. This included the requirement to assess which of their functions and policies were relevant to the general duty with regular subsequent reviews (3 years was proposed). It also required authorities to set out their arrangements for assessing and consulting on the impact on the promotion of race equality of policies proposed to be adopted. It also required that arrangements for monitoring for any adverse impact on the promotion of race equality or policies adopted or proposed be set out. Arrangements for publishing the results of assessments, consultation and monitoring were also to be set out as also arrangements for ensuring minorities had access to information and to services provided and that arrangements for training staff on issues relevant to the duty to promote race equality be also set out.

As previously stated, in Scotland the requirement to publish the Race Equality Scheme rested on Scottish Ministers collectively and the Scottish Executive published an overarching Race Equality Scheme. The Crown Office and Procurator Fiscal Service published a detailed Race Equality Action Plan (REAP) to guide the work of the Department on race equality matters during the life of the Executive's Race Equality Scheme (this was November 2002 - November 2005). The REAP was published on the Departmental website on 30 November 2002 ( www.crownoffice.gov.uk).

The Jandoo Action Plan was the immediate action taken after the Chhokar case but has been itself to a large extent superseded by the REAP.

The 'in house' monitoring of the REAP is a core function of the Race (now Diversity) Strategy Group. The creation of the 11 Area Resource Teams with the aim of implementing strategy at local and Area levels with their obligation originally to report to the Race Strategy Group and now as discussed elsewhere the Legal and Policy Forum and Management Board were the main vehicles for delivery of the overall strategy.

The REAP analyses the work of the Crown Office and Procurator Fiscal Service by dividing it into various columns headed 'Function', 'Relevance to the General Duty', a column headed 'What we have done already', a column headed 'What we will do' and a final column headed 'By when'.

Each facet of the work of the Department is looked at under each of these headings.

Not surprisingly given its central role in the criminal justice system the Crown Office and Procurator Fiscal Service in relation to analysing its functions has decided that most if not all of these have a high relevance to the general duty. Indeed only the work in relation to the supervision of charities (now going elsewhere) and the collection of property falling to the Crown are described as either medium or low.

The REAP was carefully prepared to meet the obligations imposed by the Race Relations (Amendment) Act 2000. Again this has provided a very useful template (similar to the Jandoo Action Plan) to set out what is to be done and allow for monitoring of performance.

The Department as part of the work of the Diversity Strategy Group reviewed the REAP after the first year. A number of milestones in the first year were achieved including:-

• The prosecution of racist crime;
• Interpreting/translation;
• Diversity awareness. The rollout of these courses commenced in November 2003;
• The Equality Advisory Group.

Slippage had occurred in the monitoring exercise for death and related criminal cases and it was decided to extend this for 4 months. At the time of writing this has still not taken place but is due to commence shortly.

It was also recognised that more work had to be done on monitoring and impact assessment of policy.

A slight softening on the policy of prosecution of race crime was highlighted to allow warning letters in exceptional circumstances.

The findings of the CRE survey in December 2003 referred to previously were discussed at a meeting of RESIG and members of COPFS Diversity Team were in attendance. COPFS had not been one of the bodies looked at. Strengths were found to be in the area of publishing and training but the main problem area was seen to be the thinking behind impact assessment.

We have commented elsewhere on the race-proofing tool devised by COPFS and the CRE website. The worst feature in terms of compliance was monitoring of the employment duty (only 7% of schemes looked at had made arrangements for this). We have commented on COPFS monitoring in our Chapter on Employment.

The CRE had 3 generic recommendations for public authorities:-

• Keeping the legislation under review;
• Providing practical guidelines;
• Supporting strategic partners.

In particular in relation to the Scottish Executive the CRE called for it to ensure that all Departments take responsibility for the promotion of equality and that responsibility for the implementation of the Race Relations (Amendment) Act 2000 rested at a senior level within each Department. The Crown Office and Procurator Fiscal Service score highly here in having both top management and ministerial input as discussed elsewhere. In addition the CRE recommended that the Scottish Executive both at ministerial and administrative levels took a strategic approach to promoting and implementing the 2000 Act and that Departments should include racial equality objectives in their programmes for managing change and modernisation and that the Race Equality Schemes should be linked with the business planning and budget process.

From the Crown Office and Procurator Fiscal Service perspective the issues of impact assessment and what would constitute good practice were seen as especially relevant and also the issue of "mainstreaming". The Department continued to look at ways to build on the numerous publications, guidance tools and diversity awareness programme to ensure this mainstreaming took place.

Continuing review includes:-

• Policy on racist crime;
• Diversity awareness courses;
• The performance of the police in relation to race cases;
• The REAP being amended by adding additional objectives for year 4 including the review of the role and responsibilities of the Area Resource Teams (as discussed elsewhere) and the Diversity Team;
• A Diversity Action Plan being published as an Annexe to the REAP and the Area Resource Teams are seen as the main vehicle for implementation of this;
• The Race (now Diversity) Proofing Tool being updated to include practical examples;
• The Cultural Awareness Guide (available on the Departmental Intranet) being re-packaged and sent out as part of pre-course reading material to participants in the Diversity Awareness Programme;

"The Diversity Awareness Programme is really good. I really enjoyed it."
(Crown Office and Procurator Fiscal Service staff member, October 2004)

• The translation of material and sensibly through the working of WGIT a criminal justice wide policy is being attempted on the translation of documents and the categories of languages required;
• The performance of the Equality Advisory Group (discussed elsewhere);
• A review of recruitment policy, practice and outreach work. This will review diversity generally including disability, gender and age;
• The development and piloting of a Diversity Action Plan (now published).

Individual units of Crown Office were not reviewed and this has been carried forward.

The Department commissioned a study to look at the monitoring of ethnicity of accused, victims and witnesses (the Reid Howie Report) which is being considered by RESIG to enable a system-wide approach to be taken which will make for more meaningful cross agency monitoring.

These examples show a Department willing to adapt and build on experience both internally and externally. The COPFS membership of RESIG is particularly useful. The REAP is seen as a possible model for others although sensibly the Department itself advises caution in that regard. One example of the benefit of COPFS membership of RESIG is the commissioning of the Reid Howie Report referred to above and its likely use across the criminal justice system. The COPFS structure of the Diversity Strategy Group at the centre with its ministerial input and Area Resource Teams "in the field" is seen at RESIG as a particularly useful way of translating policy into practice together with the existence of the Diversity Team itself to act as a catalyst and driver.

COPFS has been able to share with other RESIG members the benefit of its experience in assessing the likely impact of proposed policies on the minority communities and for reviewing the actual impact once policy becomes practice.

Overall we found no signs of complacency in developing policies and practices in this field and the approach to the overall strategy appears to be well founded and in tune with the published strategic aim of COPFS -

"We aim to play a pivotal role in the achievement of the purpose of the Criminal Justice System of maintaining the security and confidence of the people of Scotland by providing just and effective means by which crimes may be investigated and offenders brought to justice."