Justice Committee

Meeting date: Tuesday, May 30, 2017

Official Report 664KB pdf

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Subordinate Legislation

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Criminal Justice (Scotland) Act 2016 (Consequential and Transitional Provisions) Regulations 2017 [Draft]

Agenda item 2 is consideration of an affirmative instrument: the draft Criminal Justice (Scotland) Act 2016 (Consequential and Transitional Provisions) Regulations 2017. I welcome the Cabinet Secretary for Justice and his officials: David Dickson is from the criminal justice delivery unit, and Kevin Gibson is a solicitor in the Scottish Government’s directorate for legal services.

I refer members to paper 1, which is a note by the clerk, and I invite the cabinet secretary to make a brief opening statement.

Thank you, convener. It is timely that we are looking at the regulations today, as Scotland’s first trafficking and exploitation strategy was laid before Parliament this morning. The strategy is the result of extensive—[Interruption.]

Are you taking the trafficking regulations first?

The other ones.

Okay. My folder is back to front. [Laughter.]

I hope that it will help if I briefly explain the purpose and effect of the criminal justice regulations. As members know, the Criminal Justice (Scotland) Act 2016 introduces a number of reforms to our criminal justice system, including in respect of the procedure for cases that are tried before a sheriff sitting with a jury. The provisions are being commenced and implemented in stages between the end of May and the end of August this year.

The regulations make some minor and technical amendments to the provisions of the Criminal Procedure (Scotland) Act 1995 that cover sheriff and jury cases. The amendments reflect the fact that, under the new system, the Crown will no longer indict accused persons to a first diet and a trial diet. Instead, the Crown will indict the accused to a first diet only, and the court will appoint a trial when it is satisfied that the case has been prepared by both sides and is ready to proceed to trial. The regulations will amend the 1995 act by removing references to the Crown fixing a trial diet, as that will no longer be the case.

In addition, the regulations contain some transitional provisions to ensure that the new procedure will function properly for cases that are indicted under the old system, but which will still be live when the new system comes into force.

That is a very clear and brief overview of the regulations and their context. I am, of course, happy to answer any questions.

The regulations seem to pick up on some of the points that were made in the committee’s Crown Office and Procurator Fiscal Service inquiry report, and we are very encouraged by that.

As members do not have any questions for the cabinet secretary, we move to agenda item 3, which is formal consideration of motion S5M-05624. The motion will be moved and there will be an opportunity for formal debate, if necessary.

Motion moved,

That the Justice Committee recommends that the Criminal Justice (Scotland) Act 2016 (Consequential and Transitional Provisions) Regulations 2017 [draft] be approved.—[Michael Matheson]

Motion agreed to.

That concludes our consideration of the affirmative instrument. The committee’s report will note and confirm the outcome of our consideration. As it has been a non-contentious issue, are members content to delegate to me, as convener, the authority to clear the final draft of the report?

Members indicated agreement.

I suspend the meeting briefly for a change of officials.

10:04 Meeting suspended.  

10:05 On resuming—  

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Human Trafficking and Exploitation (Scotland) Act 2015 (Relevant Trafficking or Exploitation Offences and Relevant UK Orders) Regulations 2017 [Draft]

Agenda item 4 is consideration of another affirmative instrument: the draft Human Trafficking and Exploitation (Scotland) Act 2015 (Relevant Trafficking or Exploitation Offences and Relevant UK Orders) Regulations 2017. I welcome the Cabinet Secretary for Justice and his officials: Anna Donald is head of the victims and witnesses unit; Susan Young is a policy officer on human trafficking; and Kevin Gibson is a solicitor in the Scottish Government’s directorate for legal services.

I refer members to paper 2, which is a note by the clerk, and to paper 3, which is a briefing from Police Scotland. Cabinet secretary, do you wish to make an opening statement?

Yes, thank you, convener. As I mentioned earlier, it is timely that we are looking at the regulations today, as Scotland’s first trafficking and exploitation strategy was laid before Parliament this morning. The strategy is the result of extensive partnership working and it sets out actions to identify and support victims, to identify and disrupt perpetrators, and to address broader conditions that foster trafficking and exploitation.

The regulations focus on disrupting the activities of perpetrators. Their purpose is to ensure that our legislative provision is as comprehensive as possible. The regulations relate to part 4 of the Human Trafficking and Exploitation (Scotland) Act 2015, which introduces two new court orders—namely, trafficking and exploitation prevention orders, or TEPOs, and trafficking and exploitation risk orders, or TEROs. Members will be aware that commencement regulations that bring part 4 into force have already been made, whereby all provisions relevant to TEPOs will be commenced by 30 June and all provisions that relate to TEROs will be commenced on 31 October. The regulations that are before the committee today make further provision in relation to part 4 in anticipation of that commencement.

Section 16(1) of the 2015 act sets out a list of relevant trafficking or exploitation offences, on which the operation of TEPOs and TEROs are based. Section 32 of the act deals with the enforcement of TEPOs and TEROs, and provides that it is an offence if a person who is subject to such an order does something that is prohibited by it, or fails to do anything that is required of them by it. Section 33 of the act provides that the Scottish ministers may specify that breaches of orders that are equivalent to TEPOs and TEROs but which have been made elsewhere in the United Kingdom are an offence in Scotland under section 32.

At the time of the introduction of the Human Trafficking and Exploitation (Scotland) Bill, the final form and in-force date of most of the additional offences and orders was not known. When it passed the Human Trafficking and Exploitation (Scotland) Bill, the Scottish Parliament ensured that there was a method for updating the relevant lists in order that the bill as enacted—in sections 16 and 32—had such provision. If approved, the regulations will do that, by adding offences that have been created by trafficking legislation elsewhere in the UK to the list of relevant trafficking and exploitation offences that are set out in section 16(1) and specifying court orders that have been created by that legislation, breach of which in Scotland will become an offence. Those UK offences and orders are equivalent to the offences and orders that were created by the Human Trafficking and Exploitation (Scotland) Act 2015.

The only exception to that is section 62 of the Sexual Offences Act 2003, which makes it an offence to commit another offence with the intention of committing a trafficking offence. We seek to add that to the list of offences, because criminal conduct that is motivated by an intention to commit a trafficking offence demonstrates a clear risk that an individual might in the future engage in conduct that is related to trafficking.

The practical effect of adding those offences and orders to those that are already listed is that Scotland will be an increasingly hostile place for traffickers. People who have committed or are at risk of committing offences elsewhere in the UK that correspond to the offences that are listed in the Scottish act can be targeted. Furthermore, if traffickers who are subject to an order similar to our TEPO or TERO that has been imposed elsewhere in the UK breach that order in Scotland, it will now be possible to prosecute them here for that. I strongly believe that the addition of equivalent offences and orders elsewhere in the UK to the list in our act demonstrates our commitment to Scotland being and remaining a hostile environment to trafficking.

I am happy to answer any questions.

Do members have any questions for the cabinet secretary?

Good morning, cabinet secretary. I am fully supportive of the provisions that are laid out in the regulations.

I know that we have already discussed the matter, but my question relates to the TERO, which requires an application to be made by Police Scotland directly to the sheriff. One might expect that the Crown Office and Procurator Fiscal Service would make the approach to the sheriff—in other words, that the police would report the circumstances and then a warrant would be craved in that way. I am conscious that no conviction is required for the police to make such an approach, although there are clearly thresholds of evidence. Will the police think, “We haven’t got enough evidence to go ahead with a prosecution, so we’ll just go for a TERO”? What reassurance can you give around that? What would be the avenue of redress for anyone who was the subject of a TERO? Is there an appeals system, and who would any appeal be made to?

With a TERO, there is no requirement for a conviction, although the legislation contains a range of requirements that have to be met and the court must consider those when it receives an application.

The provision has been made for chief constables to apply for TEROs on the basis that the individuals concerned might not, at that point, have been referred to the Crown Office and Procurator Fiscal Service for a prosecution to be pursued. However, the police might have concerns about conduct or activity that might indicate that an individual is involved in the trafficking of people, and the provision gives them the opportunity to make an application to the court. The court must be satisfied that the adult against whom the order is sought has acted in such a way that there is a risk that they could commit a relevant offence under the Human Trafficking and Exploitation (Scotland) Act 2015.

Such individuals have the opportunity to challenge the order in court through the normal due process. If a TERO is granted, the accused has the opportunity to take the matter back to the court and have it reviewed. There is also the opportunity for the chief constable to do that if it is deemed necessary.

The timeframe for which a TERO applies is different from that of a TEPO on the basis that no conviction has been secured at that point. A TERO has a fixed period of at least two years, whereas the minimum period for a TEPO is five years. The timeframes are different, and certain criteria are set out for the court to consider in determining an application for a TERO.

Would you expect Police Scotland to liaise with the Crown Office regarding any application when there might be insufficient evidence for a prosecution but a TERO might be appropriate? I am thinking about the process of the police dealing directly with the courts and bypassing the Crown Office. It would be of concern if that were to become the process.

The likelihood is that the individuals concerned would be on the police’s radar. Given the nature of the activity that they would probably have been involved in, I would expect the prosecution services to be aware of them as well. There might be insufficient evidence to justify a conviction at that point, but there could have been a range of activities that would raise concerns about an offence being committed. In those circumstances, a TERO would be appropriate. It provides the police with an additional measure in taking action against an individual who might be involved in activity that could lead to trafficking. From your own experience, you will know that it can be difficult and complex to identify such individuals and the way in which they are operating.

I want to follow up on John Finnie’s line of questioning. What leapt out at me from the policy note was that oversight of the measures would need to be carefully managed. Is there a process by which the Government intends to look at the operation of TEROs, might further clarification be necessary on the criteria, and will the operation be kept under review?

10:15  

We will look at how the TEROs and the TEPOs are operating. We will liaise with the Crown Office and Procurator Fiscal Service, Police Scotland and the Scottish Courts and Tribunals Service to evaluate how they are operating and whether they are fulfilling the purpose for which they were intended, and to consider whether there is any need for further alteration to the arrangements that we have in place. We will certainly keep them under review.

Would that review incorporate any evidence or input from other bodies outwith the courts or COPFS? I am thinking of bodies such as the Scottish Human Rights Commission, which I am sure will keep a weather eye on the situation over the coming years.

We are not planning any formal review process, given that the regulations for the TEPOs and TEROs have already been introduced; what we are doing now is just adding some relevant factors. However, when we introduce any new provisions—particularly orders such as these—we want to continue to evaluate how effective they are proving to be, so we will certainly be doing that. If any issues of concern were raised by the Scottish Human Rights Commission, they would of course be considered, but you will recall that quite a number of the issues were considered when the Human Trafficking and Exploitation (Scotland) Bill was going through Parliament, and at that time the measures were viewed as proportionate and reasonable.

We will also engage with organisations that work in the field, such as Migrant Help and the trafficking awareness-raising alliance, not only on how the orders are operating but on how the legislation as a whole is operating. Those organisations have been key to the strategy that has been published today, and in ensuring that we make the country as hostile as we can to those who want to peddle the misery of human trafficking.

As there are no further questions from members, we move to agenda item 5, which is formal consideration of motion S5M-05625. The Delegated Powers and Law Reform Committee has considered and reported on the regulations and had no comment to make on them. The motion will be moved and there will be an opportunity for formal debate, if necessary.

Motion moved,

That the Justice Committee recommends that the Human Trafficking and Exploitation (Scotland) Act 2015 (Relevant Trafficking or Exploitation Offences and Relevant UK Orders) Regulations 2017 [draft] be approved.—[Michael Matheson]

Motion agreed to.

That concludes our consideration of the affirmative instrument. The committee’s report will note and confirm the outcome of our consideration. Are members content to delegate to me, as convener, the authority to clear the final draft of the report?

Members indicated agreement.

10:18 Meeting suspended.  

10:21 On resuming—