Restitution Fund (Scotland) Order 2025 [Draft]
Our second item of business is an evidence session on an affirmative instrument, the Restitution Fund (Scotland) Order 2025. We are joined by the Cabinet Secretary for Justice and Home Affairs. I also welcome her Scottish Government officials, Avril Davidson, from the police division, and Ruth Swanson, solicitor.
I refer members to paper 1. I intend to allow around 10 minutes for the evidence session.
I invite the cabinet secretary to make some opening remarks on the Scottish statutory instrument.
Good morning, colleagues. The order revokes and replaces the original Restitution Fund (Scotland) Order 2021. Its purpose is to remove the Scottish Police Benevolent Fund as the operator of the restitution fund and to make provision for Scottish ministers to operate the fund.
The order maintains provision for the administration of the fund, including making payments from the fund. The fund will be used to support services for police officers and police staff—or any person assisting them in the course of their duties—who have been victims of assault.
Restitution orders are imposed by the courts in a similar way to fines. The money that is received from the restitution orders is paid into the restitution fund, which is ring fenced for the purposes that are set out in the legislation. Police officers and police staff who are the victims of assault can currently access support services through police treatment centres or Police Scotland’s workplace provision of occupational health and employee assistance, for example, but the restitution fund makes available additional funds for valuable support services and it is also available to any person assisting the police in support of their duties who is the victim of assault. We anticipate that the most likely victims of assault—under section 90(1) of the Police and Fire Reform (Scotland) Act 2012—will be police officers and custody officers.
Support services can be any type of service or treatment that is intended to benefit the physical and mental health or wellbeing of the victim. There is no limit to the type of treatment or support that will be considered, and it could extend to the purchase of, for example, specialist equipment, to the funding of adjustments, where appropriate, or to the provision of support services in a different location or setting.
The main limitation of the fund is that it cannot be used to provide a direct payment to victims.
Having ministers operate the fund does not introduce any barriers to the way in which the restitution fund will be operated, and the revised equality impact assessment concludes that the provision of the order does not discriminate in any significant way and that access to support from the fund will not be impacted by any protected characteristic.
No one should face abuse or violence while at work, and the restitution order sends a clear message that, if you assault our police officers or police staff, you will pay for your actions.
Thank you, convener. I am happy to take any questions.
Up front, I will ask a straight question. The order came into force on 10 February 2021. In June 2021, the Scottish Police Benevolent Fund withdrew from administering the restitution fund. In August 2021, a letter from the cabinet secretary said that no money would be paid out and that the restitution fund would not operate unless and until there was an alternative operator for it. Fast forward to today—4 June 2025—and only now do we have legislation that puts in place an alternative that will allow everything to start moving. Why on earth have we had a four-year delay?
Convener, you are quite correct to say that there is a history to that. You correctly referred to the fact that my predecessor, the Cabinet Secretary for Justice and Veterans, wrote to the committee in August 2021 to confirm that the Scottish Police Benevolent Fund had withdrawn and no longer wanted to operate the fund. Thereafter, there were extensive discussions with the Scottish Police Federation, and they looked positive until about the start of last year.
I wanted to see the fund in operation, so I made the decision last year that, in the absence of either the Scottish Police Benevolent Fund or the Scottish Police Federation being prepared to operate the restitution fund, it should fall to Scottish ministers.
Restitution orders are currently available to the courts, but it is fair to say that, when the fund is operational, it will give us additional opportunities not only to appropriately raise awareness of the contribution that restitution orders can make to vital support, but to support their use by our independent courts.
There has been a considerable delay of four years. Has the Scottish Government got any data on whether any individuals have lost out as a result of the four-year delay and, simply for administrative reasons, have not got what they should have been entitled to?
The funds still rest in a ring-fenced account. There is data available: the courts have imposed 103 restitution orders. I will be frank, convener, and say that, although that is a matter for the independent courts, I have asked my officials to engage appropriately with the Scottish Courts and Tribunals Service after the successful—I hope—passing of this statutory instrument. We will proceed with the establishment of the guidance and the application process and get the fund up and running for applications by April next year.
I am keen to make people aware of the benefits of restitution orders and to support their use in a way that is appropriate to my role and does not stretch into interfering with the independence of the courts in any way. However, I want to boost the funds that can go into the restitution fund so that they can be used appropriately.
Thank you. We will move to questions from colleagues.
As you said, cabinet secretary, whether to impose restitution orders is a matter for the courts to decide. We have heard that there have been 103 such orders and that in a given case the court can impose either a fine or a restitution order. From what I have read, it seems that the amount of any restitution order should be broadly the same as that of any fine that the court might have imposed. Does that mean that the courts have complete freedom to decide which of those options they want to apply? Is there guidance on when a restitution order should be used, or are there any criteria for that?
10:15
It is a matter for the courts, as you would expect. My understanding is that the courts can make a restitution order separately or along with other orders—so, for example, they could impose both a fine and a restitution order.
The great benefit of restitution orders is that they support not only police officers and police staff who themselves have been assaulted in the course of their duties but other people, such as other emergency workers, or civilians, who have been assaulted when they have assisted them in the course of those duties. The restitution orders bring something additional to what is currently available to the courts.
I had not appreciated that a restitution order could be imposed as well as a fine. I have not looked recently at the repayment figures for fines. I know that, in the past, there have been problems with collecting fines—I do not know whether that is still the case. I would think that someone’s ability to pay might be a consideration. If a court imposes a fine and is thinking about making a restitution order, presumably it would use some kind of self-imposed criteria to decide whether the offender could afford that, otherwise we would not get the return on it.
As with any financial penalty, payment can be made in instalments. There is an obligation on the court to consider the offender’s means and whether they would be able to afford to make such payments.
Is that possibly why there have been only 103 restitution orders?
To be honest, I think that we will be in a stronger position to encourage the use of restitution orders once the fund is up and running and there are people in place to administer it. I am keen to understand the data further, and I will certainly ask my officials in justice analytical services to liaise with the Crown Office, for example, on further data.
As I said earlier, I am keen for my officials to engage appropriately with the Scottish Courts and Tribunals Service to raise awareness of restitution orders and remind people of their existence. Such orders have been around for some time, and they have been used. I want to encourage their continued and expanded use, given the benefits.
Until now, funds recouped through restitution orders have not been administered to any charities for the benefit of victims of assault. That has not happened. The purpose of the instrument that we are considering today is to get that fund established, get the guidance in place and get the fund operational by next year.
I will continue Pauline McNeill’s line of questioning. Can you explain the restitution fund a wee bit more? The court can impose fines that are paid directly to the victim. Is the restitution fund in addition to that? If the court imposed a fine it would be paid directly to the victim, who would be a police officer, but the restitution fund is not in addition to that.
No. It is important to note for the record that, in general, fines are not paid directly to victims. The fine income, in the first instance, rests with the Scottish Courts and Tribunals Service as part of its income inflows throughout the year.
I will clarify with the committee what happens with compensation orders, which are a different form of financial penalty. However, any funds from restitution orders that are imposed by the courts go into the restitution fund—they do not go directly to victims. Organisations that support police, police staff and others can apply to the fund that is available, to enable them to support victims.
So, a victim would get paid from a compensation order.
I will clarify that.
Right—you will come back to that.
For the purposes of today, I have not looked in close detail at how compensation orders currently work. I know that, because fines are financial penalties, the income from those does not go to victims.
My question was whether the restitution order replaces compensation orders.
No.
So, would the police not get a compensation order, as the victim?
As I said to Ms McNeill, the court has various options in front of it—a custodial sentence, a community payback order, a financial penalty by way of a fine, a compensation order or a restitution order. The court can apply one or all of those options, or a combination of them, as it sees fit.
Would the police still be entitled to a compensation order?
Victims, who could include police officers, would be entitled.
The police, as a victim.
The court can use a fine, a compensation order, a restitution order or a community or custodial sentence with respect to any case as it sees fit, whether that involves a member of the public, a police officer or an emergency services staff member.
Good morning. I am wondering about the measure’s impact on the SCTS’s workload. I am thinking that it will not be huge, but is that being thought about?
We always think about those things. I can confidently say that that is not a concern, because the Scottish Courts and Tribunals Service already has to administer financial penalties, such as fines imposed and compensation orders.
Is there a timescale for when the measure could be fully operational?
We are aiming for April next year.
Would you like to come in, Katy?
I do not have any questions—thank you.
I have a final question, cabinet secretary. If the motion recommending approval of the draft order is agreed to today, only then, as I understand it, will the fund open up for applications—or the consideration of how it will open up for applications, and of the criteria for those applications, will start. Assuming that the motion is agreed to today, only at that point—four years after the measure was originally put in place—will we start considering the criteria for applications. That begs the question: why was that not done over the past four years? Perhaps more importantly, when will that consideration conclude?
The end point that we are working towards is that it should be possible to make applications to the fund from next April. To be candid, convener, I appreciate your frustration in that regard. I should say that there was a working group that involved Police Scotland, police staff associations, trade unions and charities such as the police treatment centres. There was certainly broad consensus there, and consideration was given to the view that we would want any bureaucracy to be proportionate. We do not want to create too many hoops or hurdles, although, obviously, the financial governance aspect would need to be safeguarded.
Should the motion be agreed to, we would proceed with development of the guidance, on which we would need to consult, and we would also consider our work on the application process. To be clear, I have already seen an outline of the application process, which would take us from the court imposing a restitution order on an offender right through to the distribution of funds and the victim receiving the relevant support.
I am grateful. Do colleagues have any further questions?
Cabinet secretary, I just want to check that I have understood what you said about what the courts can do. I agree that there should be more encouragement to use the orders, but the Scottish Government policy note says:
“We anticipate that in a given situation the level of financial penalty imposed by the courts is likely to be the same regardless of whether it is a restitution order or another financial penalty such as a fine. The financial impact on the offender and their family, and any resulting impacts, are therefore anticipated to be unchanged as a result of the implementation of restitution orders.”
My reading of that is that, if a court were considering applying a restitution order, that would not necessarily be in addition to a fine, so that would not be a barrier. However, I thought that you said that it can impose both. Did you mean that if it does impose both, the financial penalty should not be higher than it would have been had the court applied only a fine?
My officials can correct me if I am wrong, but I think that it is the Criminal Procedure (Scotland) Act 1995 that sets out the procedures for financial penalties and the level of payment. The maximum level for a restitution order is £10,000, as is the maximum level for a fine. That is an established procedure for the courts.
It is also my understanding that the courts have the option of imposing a fine, a restitution order or another penalty and, if they wish, they can use a combination of penalties. I do not have the figures in front of me, but courts sometimes impose fines plus compensation orders. I do not know how common that is, but it is my understanding that the courts can use a combination of disposals.
It could be a mix.
It could be.
If I understand our papers correctly, the anticipated result of the order should be such that the financial impact on the offender would not be greater than it would have been, albeit that a mix is being used. I will just read from the policy note again:
“The financial impact on the offender and their family, and any resulting impacts, are therefore anticipated to be unchanged”.
Does that mean that, even though the courts could impose a fine and a restitution order or a compensation order, there are not three separate figures? In other words, there is potential for the overall amount to be three times as much as it would have been if only a fine been imposed. If that is right, are you saying that the overall amount of the three figures should not be higher? If the courts could do that, and the overall cost to the offender would be higher, that would impact on the ability to collect the fine.
Under the legislation, the courts are under an obligation to consider an offender’s financial means and their ability to pay. As I understand your question—
The policy note says that the financial impacts are
“anticipated to be unchanged as a result of the implementation of restitution orders.”
The restitution order gives courts an additional option. They are under an obligation to consider the impact on the offender and their ability to pay. We are not changing how any of that operates, and such orders already exist. Where the court imposes a combination of compensation orders, fines and restitution orders, a hierarchy of payments is applied. When offenders do not have the means to pay the total amount, priority is given to payment of compensation orders and, thereafter, restitution orders. I hope that that helps.
Our next item of business is consideration of the motion to recommend approval of the draft affirmative SSI on which we have just taken oral evidence. As this is a debate on a motion, only MSPs may speak—officials may not.
I invite the cabinet secretary to move motion S6M-17003 in her name and to make any brief additional comments that she may wish to make.
I have nothing further to add, convener.
Motion moved,
That the Criminal Justice Committee recommends that the Restitution Fund (Scotland) Order 2025 [draft] be approved.—[Angela Constance]
Motion agreed to.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
The report will be published shortly.
There will now be a brief suspension to allow for a changeover of witnesses. I thank the cabinet secretary and her officials for participating.
10:30 Meeting suspended.