Good morning, everyone, and welcome to the first meeting of the Justice 2 Committee in 2004. I wish everyone a happy new year. I am sure that we are all anticipating and speculating about the months ahead, and this meeting will play no small part in that.
I think that your consultation document—I have not brought it with me—listed a number of examples of behaviour that was considered to be antisocial. Without exception, all those examples would be subject to existing criminal law; they would be covered by legislation on breach of the peace, vandalism or under-age drinking. At least, I do not believe that there was one example that was not covered by existing law. That was our point. The issue is how we respond to breaches of existing criminal law and our ability to detect, respond to and process offences. Researchers have estimated that less than 2 per cent of crimes end up in court because of the various stages that are involved in detecting, apprehending and processing the people who are responsible. Our view is that that is what requires attention. The behaviour that goes on is already proscribed by existing legislation, and the challenge for us is how we enforce that legislation and deal with such behaviour.
In your response to the consultation—it was an Executive consultation, not a committee consultation—you also said:
I am grateful to you for those questions, because they get to the heart of the matter at the outset. I hasten to add that we agree with many of the proposals in the bill. There is a small number with which we disagree, although those proposals seem to have a central role in the bill—antisocial behaviour orders and dispersal of groups, for example. Our concern is that, at best, they attract attention away from the real issues, as I tried to outline before; at worst, they may aggravate the situation by turning our attention to less serious behaviour when we should be focusing on more serious behaviour.
So you have a real concern.
Yes. Our motivation is the same as that of the committee. SACRO stands for Safeguarding Communities-Reducing Offending, which describes why we exist. We are concerned about how we can pursue those objectives best. We are not saying that no issues need to be addressed, but we are concerned about whether we are focusing in the right direction and we are really concerned that some proposals might aggravate rather than improve the situation.
My next question might be more difficult to answer. Given your views, what is your attitude to the proposals in the bill? Would it be wise to restrict them to a pilot operation?
As I said, our major concerns are about extending antisocial behaviour orders to under-16s, the provisions on dispersal of groups, some aspects of community reparation orders and some aspects of parenting orders. We can go into more detail if the committee wants that.
Other members will question you on those issues.
We are conscious that the proposal to extend antisocial behaviour orders to under-16s has a head of political steam behind it, so our objection is unlikely to prevent that measure from proceeding. If so, we have proposals about safeguards. Restricting such a measure initially to a pilot might well be a useful safeguard.
In common with other organisations, such as NCH Scotland, which gave evidence to the Communities Committee, we emphasise that the children's hearings system works well and can deal with all the issues that the bill attempts to deal with, but that the system has not had the resources for its programmes and back-up services to allow panels to be sure that their disposals will be implemented thoroughly. That is another resource issue.
That was helpful.
I will ask about your attitude to ASBOs for under-16s, which were just mentioned. The bill suggests extending ASBOs from over 16s to people from the age of 12, which would bring 12 to 15-year-olds into the system. Why has the age of 12 and not eight been chosen? Some people have suggested the age of eight because that is the age of criminal responsibility. At a previous meeting, we received evidence that the age of 12 was chosen because people can consult a solicitor from that age. I am not sure of the foundation for that. Should no level be set, or should the age be eight or 12? What is the cut-off point? The age of 12 seems to be a bit of an arbitrary figure that somebody has plucked from the air.
The cut-off figure should be 16. As I said, we are conscious that a head of political steam has built up. If it is determined that ASBOs should be extended to under-16s, we must ensure that the bill—or guidance—provides that all other measures should be attempted first, as in existing legislation for adults, which provides that the courts should satisfy themselves that all other measures have been attempted; that legislation also mentions mediation.
Another factor is that as the behaviour under discussion is not criminal behaviour, no test of reasonableness applies. Many dangers relate to the use of civil proceedings, such as the lack of protection in several ways.
That is because the burden of proof is lower in civil matters.
Yes.
I had planned to ask the witnesses who should be responsible for imposing ASBOs on under-16s, but it is clear that SACRO thinks that not the courts, but the children's hearings system, should do that.
Yes. If properly resourced, a supervision order with conditions from a children's hearing can already have the same impact as an antisocial behaviour order. The positive finding arising from fast-track children's hearings is that when properly resourced and proceeded with quickly, such measures work well. Ordinary children's hearings could be as effective as fast-track hearings are if they were adequately resourced.
That was a full answer.
I will tease out your attitude to the provisions on dispersal of groups, about which SACRO is uneasy—Mr Simpson just confirmed that. It is unclear whether the objection to the proposed power to disperse groups rests with the fact that, for the first time, dispersal would not follow the commission of a crime. A crime would not have been committed—the crime would be that young people were in a group that merited the deployment of the dispersal remedy. Is that SACRO's principal concern, or do you think that the measure would be ineffective and unnecessary because relevant powers already exist?
It is a bit of both. We are concerned about the way in which the bill is written. It says that antisocial behaviour is behaviour that results in, or "is likely to" result in, a member of the public being alarmed or distressed, but that is totally subjective. If a member of the public says that they are alarmed or distressed by the presence of a group, which can be as small as two people, we have to rely purely on the belief of a police officer that that member of the public is distressed. The implications of that are quite frightening as, irrespective of the behaviour of the group and whether or not it is criminal, the police can take action. There is no requirement for the person to prove that their distress is reasonable. We also know that contravention of the provision on dispersal could result in imprisonment: the provision has serious consequences.
The provision is a blunt and unnecessary tool. If criminal activity is taking place, existing powers can deal with it, as the police have said. The police should be targeting the people who are engaging in criminal behaviour. It is inappropriate to designate a particular area, as no area is appropriate for criminal behaviour. Let us target the people who are behaving criminally.
In evidence to the committee about the dispersal powers, the Executive suggested that a
It is a question of how distress would be measured. Any such test would be subjective and I have no doubt that it would vary around the country. What is an acceptable level of distress will vary according to individuals and the locality, which makes legislation difficult. The real way to deal with distress is to bring parties together so that one person can understand how their behaviour impacts on another person and how it creates distress.
I would like to add a small point—that said, I do not know how small it is. We are afraid that the provision on dispersal of groups could contravene article 15 of the United Nations Convention on the Rights of the Child, under which young people are given the right of association.
Is it not possible that an order to disperse a group could stop youngsters gathering in an area where there has been trouble and where the community and the young people are at loggerheads? Would the granting of the order not give time for community mediation to kick in?
Our understanding is that existing powers can be used to disperse troublesome groups. An area does not need to be designated for that to happen.
Yes, but there is no power to prevent the youngsters from gathering again in the same place on the next evening. Although the police can disperse them, the youngsters can return the following day. If the police could serve an order to disperse, the youngsters would be prevented from gathering until such time that community mediation took place.
I think that the point is made. Let the witness respond.
The mediation to which Keith Simpson referred, which we are pioneering in Aberdeen, has a lot of promise. The mediators will get to know people in communities at an early stage, and they will also come to recognise the hot spots. They can try to deal with young people's behaviour before it becomes troublesome. We prefer to look at it that way round. We should not wait until young people's behaviour becomes troublesome before mediation is used.
To pursue Maureen Macmillan's point, if the measure could be used to defuse a situation, do you anticipate that a group would congregate elsewhere on the next night?
That is the danger. Mediation can take effect very quickly. Indeed, it is probable that we could intervene in a situation more quickly than the time that it would take for an area to be designated. The purpose of mediation is to foster mutual understanding. However, as the convener said, if understanding is not fostered the behaviour that caused distress will be replicated in the area to which a group moves.
Maureen Macmillan wants to ask about parenting orders.
Parenting orders are another controversial area. We have received evidence on both sides: it has been suggested both that such orders would be beneficial in ensuring that children are properly parented and that they would simply put unnecessary strain on families that are already under pressure.
I am sorry; could you repeat the question?
It was about the controversial issue of parenting orders. Some people think that they will be beneficial because they will focus parents' minds on the welfare of their children, while others think that something as legalistic as a parenting order will put more strain on families.
Our view is that, if parenting orders are to be introduced, they must focus on parents' behaviour rather than on the child's. The welfare of the child must be paramount and, if parents are fined or imprisoned, that might not be in the child's best interests. If a parent is being neglectful or abusive, that is criminal behaviour and there are existing powers to deal with that.
You do not think that parents have sufficient opportunities to learn parenting skills.
I ask you to focus on questions, because we are tight for time and other members want to ask questions.
You would say that investment in parenting classes is a better alternative—
It is not just a question of providing parenting classes. We need to find out from parents what support they need. Such support could take a variety of forms at different stages of their child's development, including classes and visits from health visitors. Parents should be able to get support voluntarily, which would mean that orders might never be necessary.
If that voluntary option was not taken up, would parenting orders be appropriate?
There might be cases in which a children's hearing wants the parents to ensure that their child does something. At the moment, the reporter cannot impose such a condition, so it might be desirable for the reporter to be able to impose particular conditions on the parents as well as on the child.
I was going to ask whether parenting orders ought to be imposed by the children's hearings rather than by the courts.
That is very important, because there could be confusion if the child was going through one system while the parents were going through another.
Would you like the bill to be improved as regards parenting orders?
We would like the bill to spell out the fact that parenting orders should relate to the behaviour of the parent, that they should be obtained through the children's hearings system and that the child's welfare is paramount.
Do you consider that there are enough resources for the support services that would be needed alongside parenting orders?
Such services should be available for the reporter to refer people to as he or she thinks fit.
Before I ask a specific question, I want to ask a general question, because it is important to set the bill in a much wider policy context. I think that the witnesses would acknowledge that, in past years—irrespective of how the media portray matters—considerable attention has been paid to youth development in the context of a broad community development approach, which is about realising individual potential and providing people with opportunity. Some people would say that the bill is one strand in that wider policy context and that it is about a strategy that, as I understand it, would involve communities, agencies and young people. I would welcome your view on that.
Before the Executive's consultation document was issued, we were almost 100 per cent delighted with the progress that the Executive and the Parliament were making in developing a strategy on community development, youth crime and other measures. All of a sudden, there was a blip—the focus seemed to change. That seemed to coincide with the period just before the last election—I do not know whether that was coincidental. Since then, the emphasis has seemed to be much more negative.
Much of the focus seems to be on negative measures, such as punishment. At a conference, I heard Alan Miller, the Scottish Children's Reporter Administration's principal reporter say that there is no evidence that punishment alone works and that there is evidence that it does not work. We are anxious that such a negative focus will alienate young people and will be counterproductive.
I do not think that anyone here would disagree with that. However, I am picking up that you think that earlier policies have not been reneged on, that much good work continues, some of which needs further development and resourcing, and that perhaps we are dealing with a perception, rather than the reality.
As we said in our response to the consultation document, I understand that in England and Wales people have resented the enforcement of community reparation orders. There is a lot of merit in the proposals for CROs and we support their use and implementation for offenders aged over 16, although there should not be an upper age limit of 22—I have to say that I do not understand the reason for having an upper age limit. There is merit in introducing an order that is available as a first disposal, unlike community service orders, which are used just as an alternative to imprisonment.
Let me tease that out to ensure that I have understood your position correctly. You acknowledge that reparation can take place voluntarily and that such work is productive. Are you saying that compulsion does not work, or are you saying that you would need more evidence before you went down the road of supporting orders?
Compulsion can be counterproductive. If someone is forced to engage in reparative activity against their will, it is likely that they will be resentful, which does not bode well for their future behaviour. However, if a person is persuaded to engage in such activity voluntarily, on the basis that they recognise that they have done something wrong and have caused damage that has had an impact on another person, not only does something positive happen—they might even suggest how they might put things right—but the person's perception of what they have done is changed. That is more likely to have a lasting impact on their behaviour, which is significant, particularly for young people who are developing their social attitudes. We should not damage that development.
The victim should also have a role in coming to an agreement about the reparative work that is to be undertaken. That is important, not only from the victim's perspective, but for the future behaviour of the young person, who will understand the impact of their behaviour on the victim.
Let me take the point one step further. The nature of reparation programmes has excited some debate. Your approach is predominantly based on education to address offending behaviour, whereas the emphasis of a community reparation order is ultimately on reparation rather than education. Has the right balance been struck? Is there an educative aspect to the process of undertaking reparation work that addresses the victim's needs?
I am sure that there can be. As I said, compulsion is likely to create resentment, but there might well be individuals who will be educated as a result of going through the process. However, the same effect could be achieved if they took part voluntarily.
My final question requires only a yes or no response, as I think that I already know what your view is. Should community reparation orders be a matter for the children's hearings system rather than for the courts?
Yes.
I noticed that restriction of liberty orders were not on the list of issues about which SACRO is concerned, but you are likely to have a view on them. Should they be used for young people under 16?
We are quite anxious about them, as you might have expected. RLOs should be used strictly as an alternative to custody and with support, which would need to be resourced. If they are to be used as an alternative to secure accommodation, they should be used only when the young people pose a risk to others. If they pose a risk to themselves, they might well need to be in safe accommodation, away from their homes. There must be careful assessment of the home that a young person comes from before they are restricted to it, to ensure that they are safe there. The orders should be used strictly as an alternative to custody—which we would always see as a benefit—and there must be good assessment and properly resourced support for anyone who is tagged.
Based on what you say, I take it that you think that the use of tagging orders should be explored and that, in some cases, tagging might be more desirable than having a young person go into secure accommodation—if their needs are such, it might be a better alternative—as long as its use is judged on the individual circumstances rather than seen as a solution that fits everybody's needs.
Possibly, as long as the one-to-one engagement, commitment and support that children need are available and the tag reassures people more than putting the child into custody would. However, that point is a bit marginal. The emphasis must be on support and meeting children's needs rather than on the tag. A tag will not, by itself, change attitudes or behaviour; other work must be done, perhaps involving cognitive skills programmes as well as support. The challenge to criminal behaviour must be there, but tagging should be used with caution and should not put children in a more risky situation or give them a badge of honour that they can parade among unsuitable peers.
Let us move on to fixed-penalty notices. Your submission mentions your concerns about the way in which the new powers will work and how effective they will be. North Lanarkshire Council has a very effective antisocial behaviour task force, which uses all sorts of methods to engage with the community and to address antisocial behaviour. The task force believes that the proposals for new powers in relation to fixed-penalty notices are positive and that such notices might be a useful tool to have in the local authority's toolbox. Why do you think that the proposals will not be helpful?
The task force in North Lanarkshire also works with mediation, which we see as a better way forward.
Our main comment on fixed-penalty notices is that we feel that they would be inappropriate for under-16s. I understand that that was accepted in drafting the bill, and we are delighted with that.
I have two final questions. I know that you have an unease about closure notices and feel that they simply move a problem on rather than address its symptoms. Does your unease stem from the fact that you think that the existing legislation is not being deployed, or do you have a broader concern?
No, I would not say that our concern is broader. There might be cases in which closure notices would be useful. Our concern is that they do not deal with the principal cause of the problem, but skirt around the edge. However, we do not have a strong objection to the proposals in the bill.
Much of the bill depends on someone somewhere being able to define antisocial behaviour, which does not appear to be defined in the bill. Do you regard that as a serious difficulty?
It is a fundamental difficulty that antisocial behaviour and criminal behaviour are confused in the present proposals. Some criminal behaviour is antisocial and should be dealt with by criminal law. Some antisocial behaviour is not criminal and—as we have said before—should be dealt with by measures other than the law, including mediation. I do not think that those distinctions are well spelt-out in the proposals, and that is at the heart of our concerns.
There was a desire to discuss with you the whole question of community mediation, but that has been fully covered and you have made your views clear on that. Do members have any further questions for our witnesses?
No.
Do our witnesses have any concluding remarks to make? That is not to say that you have to make any concluding remarks.
We have covered the main issues that we wanted to address. If anything occurs to us later, we will put it in a written submission. I have left some additional papers with the clerk, which the committee may find interesting. I picked them up at conferences.
That is helpful. Thank you for that. I thank you both for what we all agree has been an extremely fruitful session.
Meeting suspended.
On resuming—
It is now my pleasant task to welcome to the meeting representatives of Apex Scotland. Bernadette Monaghan is the director and Patricia Bowerbank is the service manager. Thank you very much for making yourselves available. We have had the benefit of your submission and committee members now want to explore a number of areas with you.
I want to ask about community reparation orders and to find out how successful you feel that supervised attendance orders have been.
In our experience, supervised attendance orders have been very successful. One reason for that is that supervised attendance is a constructive penalty. I was struck by what the witnesses from SACRO said about community reparation. When something is purely a punishment, with the purpose of making an example of young people, it can be counterproductive and lead to entrenched attitudes and hostility. In our experience, sheriffs are keen to use supervised attendance orders. They will probably be more in favour of them once they become a first sentencing option, which will happen in two pilot areas. As members can see from our written submission, our results have been pretty good—not only in the number of people who complete supervised attendance orders, but in the number who subsequently move on to positive outcomes.
Supervision orders are, in effect, for fine defaulters, and community service orders are at the other end of the spectrum. Is there a place for community reparation orders?
To be honest, I am not sure. One of my major concerns is that the distinction between supervised attendance, community reparation and community service becomes blurred in practice. People are moving further along the tariff and further into the system for what could have been relatively minor behaviour. We have to be clear about the criteria and we have to ask where community reparation sits and whether it is used only for people who fit those criteria and not for people for whom supervised attendance might be more appropriate.
A number of people have suggested that the community reparation orders that will be available for 12 to 21-year-olds should be put in place for eight-year-olds and that there should be no upper age limit. What is your view?
I am not sure about the use of community reparation orders for under-16s. The hearings system already has many powers and I would like more emphasis to be put on the education and needs of under-16s, rather than on purely punitive responses.
Should community reparation orders be a matter for the courts or the children's hearings system?
I would say that they should be a matter for the courts. I would caution against bringing measures that are geared towards adults—by which I mean over-16s—into the children's hearings system. Most young people do not come to the attention of the formal systems; the ones who do represent just 1.5 per cent of young people. They tend to offend once and then not come back into the system again. Only a very small proportion of children go on to offend in any sort of persistent way and they have a whole raft of issues and needs that set them apart from young people who engage in minor offending and minor behaviours.
In your submission, you say that you would be happy to engage formally with the Executive on the nature of reparation work. Has the Executive been in touch?
No—but that is not to say that it will not be in touch. People respond to supervised attendance because it is constructive; they can work on their issues and needs and can get something from the order. Because of our experience of that, I feel that we could have something to offer in shaping the form that community reparation orders might take.
The emphasis of the Executive's reparation orders is on the work and restorative justice element rather than on education and training. Has the Executive got the balance right? Further, should compulsion be of concern?
I believe that people are more willing to engage in anything if they can do it voluntarily first. Compulsion can be counterproductive. I want more emphasis on considering needs and issues, and on education and training. Rather than address offending behaviour by doing offending-behaviour work, our role is to add value to continuing work by considering a young person's wider needs and issues so that they can sustain any positive benefits that they may get from offending-behaviour work.
I find that strong persuasion and encouragement pays off with young people far better than telling them what to do. If an idea is planted in a young person's mind, they take it forward as their own. We get far more positive results that way and there is more likelihood of our sustaining something.
Does that kind of positive enforcement have 100 per cent success for the minority of young people who are responsible for persistent antisocial behaviour?
In my experience, it does. Strong support and encouragement leads people through the process successfully.
I want to pick up on Jackie Baillie's point about the minority. Somebody told me that in Lothian, for example, there are fewer than 30 persistent young offenders. Do you believe that the approach that you just outlined would address that small minority? Do you not feel that you must take a stronger line?
If we took a stronger line, we could, for example, introduce supervision to ensure that there was continuing support. The key is consistency and, in my opinion, strong relationships built on equality and respect. I do not have contact with the 30 people to whom Mike Pringle referred—well, perhaps I do. However, I would be inclined to try the way that I outlined before I dismissed it.
One of the bill's major proposals is to extend ASBOs to under-16s. The bill suggests 12 as the lower age limit. Do you have a view on that? Some people have suggested that, as the age of criminal responsibility is eight, the lower age limit for ASBOs should be eight. I believe that the Communities Committee first suggested that. Should we extend ASBOs to under-16s? Was the proposed lower age limit of 12 just plucked out of the air?
I do not believe that we should extend ASBOs to under-16s because the children's hearings system adopts an holistic approach for under-16s. It would not be productive to go down the road of having ASBOs for under-16s because the hearings system already has powers to impose many conditions on supervision requirements while, it is hoped, ensuring that a young person's needs are addressed.
Is that a matter of resource?
It is not only a matter of resource. We cannot sit here and say, "Let's have more money so we can do more of the same." We have to be more imaginative in what we are doing. There needs to be more clarity about the role of youth justice teams, for example. Is it simply to co-ordinate better the use of resources for a more persistent, hardcore group of offenders? Or is it to take a much wider, more holistic approach to the needs of young people in a particular community? The Executive is to be commended for the steps that it has taken to address all levels of offending by young people—some £33 million will be spent on youth justice by next year. It is not a case of saying, "Let's have more resources". It is a case of saying, "What are we missing at the moment? Are there ways in which agencies could work together more imaginatively?"
Do you refer to things such as community mediation, as the earlier witnesses mentioned?
All those things have their place and they are important. Youth justice teams have a crucial role in case managing a young person because somebody has to ensure that a young person is plugged into the right service at the right time. It is not enough to have lots of resources in the community; we must ensure that young people can access them. For example, are they available at weekends? Patricia Bowerbank's work is largely at weekends and on Friday nights, when it is needed, and not Monday to Friday.
I point out that, although the suggestion about antisocial behaviour orders for 8-year-olds might have been made at the Communities Committee, it is not a suggestion that the committee has decided to endorse at this stage.
I understand that.
It was a statement made by a witness.
I think I know the answer to my question, but let us clear it up anyway. If the bill is passed and we extend ASBOs to under-16s, should such cases be dealt with by a court disposal or should they come under the children's hearings system?
It would not be my preferred option to reduce the age at which ASBOs can be served, but having said that, I would not want such cases to be the subject of a court disposal. We must remember that overall levels of offending by young people have been static since about 1991. It is only since about 1999 that it has become a political issue with a lot of media attention. The issue has become focused in people's minds.
We have already heard evidence on that. Some people would say that the age should be 18 and not 16. That is perhaps what you are indicating.
Yes.
Turning to slightly more technical matters, I notice that, in your response to the consultation, you were slightly concerned about the broad definition of antisocial behaviour. Does the bill adequately define the phrase?
The definition is wide. My general comment would be that the bill is trying to address a whole raft of behaviour, ranging from what would appear to be very minor behaviour to more serious behaviour. Having said that, I do not live in a community that is plagued by such behaviour. We have to acknowledge that there are communities out there that feel under stress, and that that we need to do something about that.
I will move on to the power to disperse groups, which I noted from your response you were concerned about. Is it your specific concern that, because of what you have just explained about the definition of antisocial behaviour apparently being principally subjective, young people might be stigmatised if the power is deployed. Is that your principal anxiety?
Yes, it is. I ask Patricia Bowerbank to comment further on that, because I know that there have been incidents of that in the youth club where she works.
That is true. I can give you some examples of meetings that I have attended with young people and of young people being represented by police at community meetings. Police have commented on the fact that a majority of complaints and calls that they get from members of the community in question are about people playing football in the park. That takes up a lot of police time, and the young people feel that they have nowhere to go. If they cannot play in the park, where can they go?
Given your experience, it might be helpful to ask you about your assessment of what the proposed measures will do for relationships between the police and young people. The deployment of the facility to disperse people will rest with senior police officers.
It will probably depend on the area in question and on the existing relationships between the police and young people there. In the area where I currently work, police come to the youth club every fortnight. Their visits are informal, and they talk about their jobs. The young people ask questions about what would happen if they got caught doing something or what happened to a certain person when they were caught doing something. They are learning about the criminal justice system and about the consequences of their possible actions.
Do you think that it would be preferable to delete the power?
Yes.
I am interested in what you say about that. We heard in previous evidence that:
That does not apply in my area, in my experience. When informally chatting to youth workers, young people tell us good points about the police in a personal way, mentioning them by name. They might, for example, say that a policeman is "a good lad" and give reasons for that.
I have a question.
I was going to invite you to ask about parenting orders, but you are welcome to precede those questions with a question on the dispersal of groups.
In your youth work, have you come across cases in which young people have been intimidated by other groups of young people?
Yes.
How do you resolve that? I thought that the powers to disperse groups might help to deal with a situation in which a group of young people was intimidating other young people.
That is a huge issue in the area in which I work. There is a long road that runs through three villages and there is always some sort of problem. To overcome that, we opened an under-18s night club in the central village and invited everyone. That meant that, if issues had arisen, the youth workers, who had a relationship with all the young people, would speak to the young people who might have felt intimidated by another group and, as a result, would obtain their trust second-hand. The fact that those young people would then come into the group and start talking helped to resolve such problems.
You are saying that the sort of situation that Maureen Macmillan outlined can be resolved at the moment.
Yes.
I notice that, in your submission, you suggest that parenting orders might be counterproductive in that they could result in the
We have to make it easy for parents to admit that they need help and support and to come forward to receive it. I was a children's panel member for nine years and, in many cases, it was the parents who needed help, because they were simply replicating their experience. My worry is that parenting orders would stigmatise people further and make them feel that they were bad parents and failures, which is counterproductive. I am not convinced that the order is necessary, although I accept that obtaining such an order would be the last step in a long process—a process that would involve costs. I would ask whether we have the services in the community to offer support to parents—rather than just the children.
You seem to think that there should be more investment in parenting classes. I am not sure to what extent such classes happen at the moment. How do you get parents to engage voluntarily? I presume that the orders would be made only if you could not get parents to engage voluntarily.
We get parents to engage through things such as children's centres. Many years ago, I worked in a large area in Edinburgh where there were children's centres. I do not know whether they are still there or what has happened to them, but that seemed to be a good model. Ostensibly, we were looking at the child's behaviour, but at the same time parents were invited in. Parents could meet other parents, share experiences and give one another support, which made them realise that they were not alone and were not the only ones with such problems.
I think that everybody would agree with that. You mentioned your experience of the children's hearings system and said that there was no way of addressing the problem of parenting. Do you think that a new court order is the best way of tackling that problem or would you like the children's hearings to be able to impose parenting orders?
I think that our witnesses gave their view on that in an answer to Jackie Baillie earlier.
No, that was about community reparation orders.
Right. I am sorry.
What about parenting orders?
I would not call the order a parenting order. We should consider the remit of the children's hearings system and its decision-making powers, which are designed to work in the best interests of the child. We recognise that a child grows up in the context of a parent or two parents and a community.
I know that Karen Whitefield wants to ask about restriction of liberty orders, but I would like to clarify something. I am interested in the evidence that you are giving. Do you sympathise with SACRO's view that there is a blurring of criminal law and social measures in the bill and that that could be counterproductive?
Yes, we share that view. We and NCH are members of the Scottish Consortium on Crime and Criminal Justice; through the consortium, we have submitted written evidence. The difficulty is that the bill is trying to deal with a whole range of measures, some of which fit neatly into a community safety framework and some of which do not. Youth justice and offending by young people should perhaps fit into the community safety framework, but that goes back to the issue of clarity about the role of the youth justice teams.
What would your advice be, then? Would you recommend that the bill should be piloted?
My fundamental point is that we need to strengthen what we already have on the ground. We must look again at the hearings system and consider rebranding it. That is happening through the children's hearings forum, an expert reference group that was set up specifically to redesign the hearings system. The group is considering whether the hearings system should prioritise and target particular groups of young people and children and families. It is considering what the hearings system should concentrate on and what it needs in order to do its work properly. The group is doing a rebranding and remarketing exercise on the hearings system.
Before I ask about restriction of liberty orders, I beg the convener's indulgence, as I want to ask Patricia Bowerbank a quick question about the dispersal of groups. She said succinctly that that proposal should not be in the bill. Without that measure, however, how would she deal with the situation that happens nightly in my constituency? Every night, between 40 and 50 young people congregate in a village in my constituency. Two hundred yards up the road there is a youth centre with a drop-in service that is run by young people for young people. That is a good community project that provides a valuable service. Furthermore, many young people from the community and neighbouring villages qualify for free access to the local sports centre. A good, healthy-living centre operates in the community.
The situation that you described sounds to me like an excellent opportunity to do some really good youth work. If 50 young people are congregating in the same place, I would send in youth workers to talk to them to work out what else they want to do.
North Lanarkshire Council has done that. Young people are running a youth project 200yd up the road. The situation is not for a minute about an older generation suggesting that it has all the solutions for what young people want. It is about a community project that is run by young people for young people. However, young people in the community are prevented from accessing the service by other young people from the community and neighbouring communities who choose to congregate and intimidate. Someone has to take responsibility for those actions. The local authority has introduced youth workers, a service is being delivered and there are all sorts of alternatives to such behaviour. However, I am not convinced that we have sufficient powers to address the problem.
I understand that that is an intimidating situation for young people who want to use the facility. However, as an adult, I choose not to go to some places because I prefer others or because I have different relationships with different groups of people. Still, you are right to say that something has to be done. If intimidation is going on and is putting people off, I would send in youth workers to work with the people and help them to set up a place that is appropriate to them and to question why they are doing what they are doing, what they are getting from it, what their long-term goals are and what the purpose of it is. I cannot comment further, as I would have to do the work first. I cannot see the benefit of police dispersal. Where would the young people go? They would just go somewhere else and carry out the same sort of aggravation.
I accept that they may well go somewhere else, but perhaps they would not be able to congregate in the one community. They would be dispersed back into their own communities and, we hope, take up some of the opportunities and activities that are on offer there. We should engage with those young people, but I am not convinced that, if we do not have the proposed powers, we will be able to deal with the problem.
I would love to live in the village that you work in, Patricia. Because I am older than you—unfortunately—I probably have considerably more experience of working in communities and I recognise that all individuals are just that: they are individual and different, irrespective of whether they are young, middle aged or old. They require different responses because of their different circumstances. Some responses will work, some will not work; it is not true to say that everything works. Your solution to Karen Whitefield's problem is what North Lanarkshire Council has tried and failed to deliver. Therefore, do you not think that there should be more in the toolbox for people to use, recognising that different people in different locations will be in different circumstances?
I recognise that. However, I do not know what the young people would learn from police dispersal.
We are driving at the need for a variety of responses.
Perhaps we can move on to restriction of liberty orders. The bill proposes that young people under 16 will, in some circumstances, be tagged. Do you believe that the use of restriction of liberty orders will be helpful or useful in addressing the offending behaviour of under-16s?
I do not think that restriction of liberty orders, whether for under-16s or over-16s, are useful by themselves. All that they do is contain somebody; they do not address why that person is doing what they are doing and they do not help them to move on from that. I would not be in favour of their use for under-16s because they may become a kind of status symbol. For young people, negative attention is sometimes better than no attention. I would worry about that.
I accept that if restriction of liberty orders are used in isolation—if somebody has committed an offence and the solution is to tag them—that will not address the problem at all. However, if the use of restriction of liberty orders involves engaging with the young person and the reasons for their offending behaviour, as well as addressing the causes of their offending behaviour and trying to help them to change their behaviour, that might be preferable. Allowing that to happen in the community instead of in secure accommodation might also be preferable.
It might be preferable. Secure accommodation is sometimes needed for a small number of young people for a short period of time, largely when those young people are a danger to themselves. In such cases, it is crucial that we get them in one place long enough so that they can begin to address certain issues. Although that could be done though a restriction of liberty order, one would have to be very clear that a young person would be in a certain place for a certain period of time in order to begin to carry out the work that was needed.
Have the witnesses any final points that they would like to make?
I should mention that we will leave some information packs about Apex Scotland, which will give members an idea of the whole range of activities in which we are involved. If you want to visit any of our services, you are more than welcome to do so.
Thank you for that information, which I am sure committee members will welcome. We have also noted your invitation.
The committee would be interested to find out whether the witnesses believe that the bill has enough of a youth focus or whether its proposals fail to recognise young people's needs.
That is a very general and difficult question. As a lot of existing legislation already has a youth focus, my gut response is that the bill's balance is probably right. That said, I disagree with some of the proposals, because I think that the children's hearings system and the legislation associated with it are already adequate. Indeed, some parenting programmes could be introduced without resorting to the criminal justice system.
We feel that the bill has a youth focus. However, we also feel that the proposed measures are inappropriate for children and young people and do not chime with existing domestic or international legislation.
You have concerns about specific proposals, but there is general recognition of the need to respond to some of the antisocial behaviour issues that communities face, particularly in relation to young people. All MSPs realise that not all antisocial Scots are young people. Existing legislation allows us to respond to and deal with the antisocial behaviour of adults, but we do not appear to have the right legislative powers to address concerns about the antisocial behaviour of young people. That is what my local authority and the local police tell me.
I do not think that we do not have the right legislative framework. Apex Scotland and SACRO made the point well: we have the right legislative framework, but we do not have sufficient resources to back up interventions under the legislation and we have problems with the courts in processing cases.
If we do not need the legislative proposals, why do the views of communities throughout Scotland appear to chime with the Executive's view? Why is it that every month at my surgeries my constituents tell me that they want antisocial behaviour addressed? I raised with the witnesses from Apex Scotland the issue about groups congregating. It appears to me that we do not have a solution to that problem. How would you address it?
It is fair to say that there are two good questions there. The first is about why Karen Whitefield is dealing with problem after problem at her surgeries and whether we need new legislation. Her second point is about the congregation of a large group of people in her constituency, about which the police appear powerless. Your views on those two issues would be helpful.
It is difficult to answer points about the specifics of a problem in a community. At our annual general meeting, a speaker from Portsmouth proposed a strategic approach to communities in which the communities would identify the leaders of groups who caused trouble and so withdraw the power that those leaders had within the groups. We will pass you the transcript of her presentation.
We share the concern about constituencies and their problems. Both of our organisations work with children and young people and we have experienced 20 years of growing frustration about the lack of services and resources.
I have questioned previous witnesses on the definition of antisocial behaviour. The bill hangs upon that definition being understood by the individuals who will seek to enforce the law. Are you concerned about the breadth of the definition? Antisocial behaviour is not specifically defined anywhere.
Absolutely. We said we were concerned in our response to the consultation and we made a point about criminal sanctions and other strong action in relation to behaviour that will be tested so subjectively. Because there is no definition of a reasonable person in the bill, behaviour that would make a reasonable person alarmed or distressed will be interpreted in a wide range of ways, so there will be different outcomes and different justice for different people.
I will make a brief point, which follows on from Karen Whitefield's comments. I recently had the privilege of visiting an NCH project in Alexandria where I met several positive young people. Their view, and their experience, was that they were victims of antisocial behaviour. They thought that a minority in the community were impacting on the rest, and they endorsed the measures that are proposed in the bill. On the basis of their endorsement, is your objection that part of this is a matter for the adult courts? Would your objections be addressed if the measures that are suggested were disposals for the children's hearings system or the youth courts, as long as they were kept out of the adult courts?
We do not have an issue with people saying that there is a problem. It cannot be denied that there is a problem; young people would be the first to say that because many of them are scared to go out because of other young people, particularly in poorer areas. There might be a lot of misconceptions in that fear, and there are issues around gangs and around the reasons why young people carry knives.
I want to push my question because I have not received an answer to it. I received an answer about the dispersal of groups, but I am kind of saying—
Do not "kind of" say something—just say it.
Okay. Is the problem with adult courts? If the majority of the measures became children's hearings system disposals, would your opposition disperse?
We would propose that children or young people whose behaviour gives rise to the assessment, feeling or concern that compulsory intervention measures are needed should be dealt with in the children's hearings system. Much behaviour that is discussed in the antisocial behaviour strategy falls into that category. However, we do not think that some measures that have been proposed, such as eviction orders on whole families if an antisocial behaviour order has been breached, are appropriate or will be productive in solving problems relating to children and young people.
I want to be clear about the matter. If we were to adopt what Jackie Baillie proposed, would the children's hearings system have adequate powers to deal with such situations?
Yes, but the system does not have adequate resources. Many cases would not even need to go to a hearing if families were offered support.
So intervention should come early.
Intervention should happen before a hearing: a hearing should happen only when a child or young person needs compulsory measures of care. However, children's hearings are increasingly being turned to in order to compel some agency to provide a solution or a service. That must be stopped. Services should be available beforehand and compulsion and intervention should happen where services are not—
So resources are an issue, in your judgment.
Absolutely.
Thank you.
I do not think that we have covered antisocial behaviour orders, as such. Like us, the witnesses have been here all morning, so they will have heard my questions to the other witnesses. I want to ask them the same questions. Should antisocial behaviour orders be used for those who are eight, 12, or 16, or only for over-16s?
We would be concerned about antisocial behaviour orders being used for eight-year-olds. It might be helpful if I use a case to illustrate what I am saying.
Would the cut-off point be at the age of 16 or at 12? At the moment, antisocial behaviour orders apply to children of 16 years and over, but the bill proposes to extend that to children who are aged 12.
We do not think that ASBOs should be extended to children below the age of 16. There must be a holistic and welfare-supportive approach that considers the meaning of a young person's behaviour. Adolescents rebel against and challenge punitive measures. We have found that examining the meaning of behaviour and adopting specific tailored resources is an approach that has been successful.
The current legislation and the hearings system have the powers that the bill seeks to give to the courts. A children's hearing can already, after due consideration, impose a supervision order with any number of requirements on a child under 16 as long as those requirements are within legislative limits. A new power is not being proposed in the bill: the problem is that it is proposed that that will happen through a criminal court, which cannot consider the wider circumstances of the child, nor can it order any other services or health requirements that the child or family might need. The point of the hearings system was that it was to be a multidisciplinary, multi-agency and holistic response to children and young people. The system already has the power to impose what would be an antisocial behaviour order, but it also has a battery of other responses. We would be moving away from that if the process was taken into courts, and we would be creating an inadequate response to children's needs and behaviour.
I think that you have answered my next question already. Do you not want courts to be used at all to impose antisocial behaviour orders? Do you want the children's hearings system to be used exclusively?
Absolutely. That was what the children's hearings system was developed for, although we believe that it has the powers but not the resources. The process is right, but we have not resourced it. It would be a shame to waste resources that are desperately needed in children's services on courts and lawyers, which are incredibly expensive and not very productive.
It will be interesting to see how people feel about that this afternoon because that point has been agreed by everybody this morning.
In defence of courts and lawyers, I say that they are productive sometimes. [Laughter.]
I referred to them in relation to the problems that we are addressing.
Thank you for that explanatory qualification.
My question is about parenting orders. I notice that Children 1st has a large number of family support services and parent-focused services. I agree thoroughly that that is the way to deal with parenting problems. I presume that parenting orders are intended to catch the people who will not engage with organisations such as yours. Do you agree that parenting orders should be used as a last stop when a parent such as Frank's mother—if she absolutely refused to have anything to do with you—could be compelled to engage your services?
Our approach and our view is that having to compel a person alienates, and creates feelings of resistance in, parents. I have been involved in delivery of parenting programmes for more than 20 years and am now involved in supervision of projects that deliver parenting programmes. I know that the programmes are successful.
Are you saying that although until now some people have refused to engage with your courses, you would be able to draw everybody into the programmes if more resources were available?
We have not had people refuse to engage in our parenting programmes; rather, the problem is that mainly mothers attend them. We have found that we need to address the non-attendance of fathers differently. For example, we might offer them a slightly different programme. One of the projects designed a programme that focused on sport, through which we managed to engage fathers, but we need more resources to engage fathers in parenting programmes.
If it were the case that you had more resources, the orders would not need to be used: everyone would engage voluntarily in the programmes, which is what people want.
That is what we want.
Does Maggie Mellon have a view on the point that was raised by Maureen Macmillan?
Yes.
Can I add something?
Yes, but please be brief, because we are trying to get through the preliminary stages.
Very briefly, the rationale for using the children's hearings system is that there should be a proper assessment of the situation, so that resources such as parenting programmes, or even education for an individual parent, can be utilised if they are recommended.
Some of my points have been covered but—for the record—am I right that you would prefer community reparation orders, if they were introduced, to be a matter for the children's hearings system rather than for the courts, and that you would prefer them to be used for the over-16s?
Yes.
Yes.
Fine. You will be pleased to hear that that leaves me with a small number of questions.
We and our projects work closely with community police, who tell us that they have developed a slightly different approach and a good rapport with communities over the years. I do not think that we need community reparation orders; the police have existing powers in relation to dispersal of groups and reparation. Other resources, such as mediation, can offer a different way of dealing with the sorts of problems that arise in communities.
I understand that there is currently no order that is comparable to the proposed community reparation order. At one end of the scale there are supervised attendance orders for fine defaulters and, at the other end, there are community service orders. Is there a need for something in the middle?
We must distinguish between different age groups. The imposition of a community reparation order might be reasonable in the case of an adult offender, but we support restorative and reparative approaches to children and young people who offend and who have been offended against—children should receive reparation as well as orders to carry it out—but, again, such approaches are matters for the children's hearings system. Indeed, we would prefer reparation to take place earlier, without the need for a hearing. If a child is able in some way to redress a wrong that they have done to someone, they should do so as soon as possible. Good parents ask their children to address and rectify their behaviour and if that kind of reparation can happen on a wider scale, it should do so.
Will you clarify your response to an earlier question? Are you saying that the community reparation orders that the bill proposes are not appropriate for children and should be the province of the courts for adults or young people over 16? Are you also saying that where some kind of community response is required in relation to offenders aged 16 or under, that could be provided for under an attendance order or other existing powers in the children's hearings system? As far as you are concerned, are community reparation orders for the under-16s out of the question?
Yes.
Yes. There are approaches that can offer restorative justice—
Under the existing law?
Yes.
I am clear about your views on compulsion, but if you were to design a community reparation order work programme, what would be the balance of its content?
I very much agree with SACRO's standpoint, which is that reparative work should not be a stigmatising ghetto activity. We should encourage all young people to give something back to their communities and we should facilitate such activity.
I agree, with the caveat that there should be a more welfare-based approach to younger children. After all, the younger a child is, the more he or she depends on parents, so the approach should be more holistic. It is about being creative in using existing resources and it is about making additional resources available to implement the more intensive work that might be needed.
Are the proposals on restriction of liberty orders necessary?
No. However, there is a small caveat to that answer. A retired, but eminent, psychiatrist said that she could see the usefulness of voluntary agreements in cases in which young people need help in controlling themselves. I can see the force of that argument, but such an arrangement would have to be voluntary.
I do not believe that the bill seeks to use tagging to replace secure accommodation. Many children require secure accommodation as much for their own safety as for that of the community. For those young people, tagging is not necessarily the right option and it would not be desirable. I do not believe that that is what the bill intends. If it was, many members would have serious concerns.
It is sad that we have been reduced to trying to control children's behaviour by technical means rather than by what they really need, which is concerned adults in their lives. If those children do not have such people, it is our job to supply them, rather than electronic controls that will never take the place of good parenting.
As there are no more questions from members, do either of you have any concluding remarks?
Parenting is one of the hardest jobs that an adult will ever undertake. There are few resources for training and little help is available to parents. We are all challenged to engage parents who are hard to reach, but we are certainly against using punitive measures to do so.
Thank you. We have found your evidence to be interesting and helpful.
Meeting suspended.
On resuming—
On behalf of the committee, I welcome Dr Lesley McAra and Professor David Smith from the centre for law and society at the University of Edinburgh. We are grateful to you both for joining us this afternoon. I understand that you wish to make a PowerPoint presentation of about 10 minutes' duration. Is that correct?
Yes. We will keep it to 10 minutes. We could perhaps go back to the slides in response to your questions if there are some matters that we pass over.
The committee would find it helpful simply to let you make your presentation and then proceed with what I know to be particular areas of interest to individual committee members. Without further ado, please proceed.
Do you have copies of the presentation?
You should have one beside you, Mike.
You should have one, but we have more copies with us.
Sorry—there was not a copy on my desk, but I have one now.
In our presentation, we will give some research-based advice relating to the first of the questions that the committee set out in its letter, on the need for, and likely effectiveness of, the new enforcement powers and sanctions that are created under the bill. We will consider research-based advice on the context in which the bill will be implemented, in terms of trends in crime and the fear of crime. We will then give the committee an overview of some of the research findings that came from the Edinburgh study of youth transitions and crime and the implications of those findings for the likely effectiveness of the bill. I was not sure whether committee members would have a handout of the slides, but I have created another handout, on the back of which I have given an overview of that study. I have passed that to one of the clerks, who will be able to give you a photocopy of it later—you do not have it in front of you at the moment. The handout describes the aims of the programme.
Most of the context is supplied in the summary points on the chart, "Crimes and offences 1993-2002". In a way, the context for the Executive's proposals, which is one of falling crime in Scotland, is paradoxical. Crime is falling in most other western countries as well, including the United States. The rate is falling according to both the statistics of police-recorded crime and the Scottish crime survey. There is, however, a small rise in the level of violent crime, both absolutely and as a proportion of the total. Violent crime accounts for only 3 per cent of the total figure for police-recorded crime.
I will look at some of the implications of our findings on offending and contact with criminal youth justice systems and the likely effectiveness of antisocial behaviour orders in particular. One of the key assumptions that underpins the bill is that the young people who are most likely to become the subject of an antisocial behaviour order will be well known to the children's hearings system and that they might end up getting a hearing. Our findings show, conversely, that many young offenders have little or no formal contact—I stress the word "formal"—with the agencies of youth justice. For example at sweep 4 of the study, when the young people were aged 15, 80 per cent of those who said that they had offended in the past year had not been warned or charged by the police. Moreover, many high-level offenders had had little or no contact with formal agencies of control. At sweep 4, of those who admitted to 30 episodes of offending in the previous year, only around a third had been charged by the police and only 17 per cent of that group were referred on to the reporter, so not many of those young offenders are known to the agencies.
I am sorry about the length of the presentation, but I can finish in two minutes.
Do not feel hassled.
Like the vast body of other research, the Edinburgh study shows—and demonstrates because of its longitudinal nature—that parenting styles help to predict whether young people will become delinquent in the future. Because we follow the same young people over a period of time, we can show that convincingly. In broad terms, the findings fit with a social learning theory of parenting, which says that children learn from the way in which their parents behave towards them. Depending on how their parents behave, they learn different things. What is important is not so much what their parents say to them or how their parents tell them that they should behave, but what the children observe to be the consequences for them of behaving in one way or another.
I thank both witnesses for managing to condense a fascinating presentation into such a short time. Certainly, the print-outs of your slides will be immensely helpful to us all.
On the whole, the evidence suggests that the trend has been the opposite. The crime survey statistics now give us a line on whether people are more or less inclined to report crime, because the survey itself gives us a much larger coverage of crime. When people report an incident of victimisation in the survey, they are asked whether it has been reported to the police. As a result, there are data about the proportion of incidents that are reported to the police and it appears that the general trend in the proportion of such incidents has been upward, not downward.
In that case, would you be surprised to hear that a major retailer recently informed me that it can no longer be bothered with the hassle of reporting crimes that happen in its outlets?
Retail outlets are an interesting and rather specialised case. I am not entirely surprised by your comment, although I agree that it goes against the trend that I have just described. I was thinking of ordinary members of the public rather than institutions. What you have described is indicative of a trend for some organisations to control things themselves instead of involving the criminal justice system. That is a different matter. After all, just because they do not report an incident does not mean to say that they are giving up on the system; they are simply dealing with the problem through other means that they think are more effective.
On crime statistics generally, it is the case that since 1997 the number of serious crimes, such as drug-related crimes, has escalated sharply—by 37 per cent, if I remember correctly.
Not all drug-related crimes are serious. We can debate what is and what is not serious. As I have said, I agree that, within the overall trend of a decline in crime, there has been a rise in certain kinds of violent crime in Scotland, including the most serious violent crimes, such as homicide. It is particularly worrying that the level of homicide is more than twice as high as it is in England; the reasons for that are not easy to understand. Violent crime is increasing within a general context of a decline in crime overall, not only in Scotland, but in England and many western countries. In the United States, there has been a big decline in serious violent crime as well as in crime overall, but that has not happened to such an extent elsewhere.
I know that Nicola Sturgeon wants to pursue matters in that area in further detail. We have quite a lot to get through, so I will ask questioners to be as concise as possible and witnesses to co-operate by providing succinct answers. That would be most helpful.
We will try.
I have a couple of factual points. I am interested in getting behind some of the statistics. It is the accepted wisdom that antisocial behaviour is on the increase. From a cursory glance at the figures in your presentation, they do not appear to bear that out. That said, the slides on the percentage of young people who say that they have engaged in certain types of offending are interesting. Are there comparative figures for previous years, which would give an insight into whether that type of delinquent and antisocial behaviour is on the increase?
Unfortunately, there are no data of that kind in Scotland, as far as I know. As our study follows through a single group of young people as they grow up, by definition it cannot tell us whether there is a change over time in the general population. There have been three youth lifestyle surveys that have examined self-reported offending among young people in England and they have not particularly shown an increase. I am afraid that I cannot give you a figure for Scotland.
The only trends that you can examine are those in convictions or referrals to the children's panel but if, as you say, only a tiny minority of offenders ever comes into contact with the relevant agencies, the trends in those figures do not really give a very accurate picture of the level of antisocial behaviour.
That is true. No one can say whether there has been a decline or an increase in antisocial behaviour among young people specifically. Although there has been an increase in media concern about the issue, I do not think that an increase in public concern has been demonstrated.
I have a final question. If it is the case that a tiny minority of offenders comes into contact with the police or the hearings system, what percentage of under-16s, for example, are referred to the children's panel on offence grounds?
In our cohort, the figure is about 10 per cent—in other words, about 10 per cent of those in our cohort have been referred to the hearings system on offence or on care and protection grounds. The proportion of those who have been referred on offence grounds only is slightly smaller, but many children get joint referrals or are referred on care and protection grounds at an earlier stage and are subsequently referred on offence grounds. Very few of that 10 per cent who have had contact with the hearings system go on to have a hearing. The proportion is tiny. At one stage, we had only about 22 youngsters at sweep 1—when they were aged about 11—who had gone on to have a hearing.
Can you break down that figure further? Do you know how many of that 10 per cent are persistent offenders who have been referred on several occasions?
Are you asking how many of those who are referred on offence grounds are persistent offenders?
I am asking how many of them are what you would describe as persistent offenders, regardless of the definition of that term.
Many of those who are referred on offence grounds are persistent offenders. I cannot give you the exact figures, because I do not have them with me. There are many persistent offenders who have not been captured by the system at all. The highest level offenders that we have in the cohort—when we talk about high-level offenders, we mean offenders who have been involved in more than 120 incidents a year—are known to the agencies. Only a very small proportion of offenders offend at that high level. The sweep 4 findings show that only 17 per cent of the 400 children of that age who had committed more than 30 offences were referred on to the hearings system. The proportion is tiny.
We took evidence this morning from several agencies that work with offenders throughout Scotland and from agencies that represent young people. The agencies said that there is no need for a legislative solution to address antisocial behaviour and that what is needed is additional resources. I am interested to learn whether you agree that what is required is increased resources, rather than a legislative response from the Executive.
The bill's policy memorandum assumes that youngsters who get ASBOs will be well known to the system and that existing interventions will have failed for them. Therefore, there is a question over whether an ASBO in itself would be a sufficient deterrent to young people's antisocial behaviour. One of the main findings of Siobhan Campbell's research for the Home Office on ASBOs in England and Wales is that they work best when agencies take a holistic approach to a child and when other interventions go on at the same time.
So you suggest that perhaps the legislative response is about providing an additional tool for a toolbox of existing responses that can be used depending on the situation and on communities' experiences of ASBOs. Is that what you are saying?
The ASBO can be regarded as an extra tool in the box, but I am not sure how effective it would be. It is useful for communities whose lives are blighted by antisocial behaviour to feel that something is being done and that their concerns are being taken seriously. However, as I said earlier in my bit of our presentation, I believe that there is a slight concern that focusing on antisocial behaviour, particularly on kids hanging out in certain areas and on dispersal orders, may make young people feel that they are not part of a community and that they are being excluded from communities. One of the most important ways in which one can address much of the offending behaviour that goes on is to make people feel that they have a stake in society and in their own communities.
I will ask you a question about ASBOs, but before I do that I want to clear up something that we considered earlier. You said in your presentation:
I will try to clear that up. There are always problems with definitions when people talk about high-level or persistent offenders. I was involved in getting a project off the ground some years ago that tried a number of different definitions of serious, persistent offenders and tried to ascertain whether we had identified the same group of individuals. We found that similar but different definitions of what was meant by serious, or persistent, or high-level offenders identified almost completely different groups of people. Therefore, definition becomes a problem when we look at the detail.
I will turn to a particular aspect of antisocial behaviour orders. The bill suggests that we reduce the age at which an antisocial behaviour order may be imposed from 16 to 12. Some people have suggested that, given the fact that the age of criminal responsibility is eight, we could lower the age limit for antisocial behaviour orders to that. Do you have a view on that?
I will comment first on the bit of your question relating to the extraordinarily low age of criminal responsibility in Scotland. In practice, it has only been possible to maintain it at eight because there has been a de facto policy of not taking that seriously. Lesley McAra will correct me if I am wrong, as she knows far more about these things than I do, but, in practice, there have been hardly any prosecutions of children aged eight, nine or even 10 for many years. Even if there were any such prosecutions, we would probably have huge problems with the European convention on human rights and so on. The idea of extending the age limit for antisocial behaviour orders below 12 is, in my view, an extraordinary proposal. In a way, I am neutral about the suggestion of extending it from 16 down to 12.
If the age limit were to be reduced, should the orders be administered through the courts or through the children's hearings system?
There is an assumption that, when a court makes an antisocial behaviour order, it is likely to consult a reporter, and that there is likely to be a hearing. That is what I understand to be the case from the policy memorandum.
In view of what you said about the criminal age of responsibility being 8, will you comment on an opinion that someone gave us in their evidence? They thought that the reason why 12 was picked is that that is the age at which someone is entitled to consult a solicitor. I do not know whether that is correct.
It is true that youngsters are expected to have legal capacity at 12, but in Europe it is common for the age of criminal responsibility to be higher. It is 14 or even 18 in some countries and ours, at 8, is extraordinarily low.
The comment that was made to us was that 12 was chosen because that is the age at which someone may consult a solicitor.
That is all that I have to say on the point.
Can I move on to the part of your presentation that is entitled "Hanging Out"? Does that phrase refer to the congregation of groups, which the bill tries to address by providing for dispersal? Does it refer to a group of individuals?
That is the phrase that we used in the questionnaire, and the young people that we asked understand it well.
Does it mean a group of young people?
In practice, hanging out is always done in groups.
I am looking at the slide that defines what some individuals get up to—some shout and swear, some consume alcohol, some are involved with drugs and some make trouble. Could all those categories be dealt with by existing procedures and facilities?
I think so, yes.
Are you saying that all those kinds of behaviour are already covered? I cannot hear you very well.
I am looking at your presentation. In the analysis of the percentage of those hanging out who engage in antisocial behaviour, four categories of antisocial behaviour are given. Are those activities not covered by existing law?
The phrase "making trouble" is vague, but many aspects of common law are vague in their very essence. Breach of the peace provisions are extremely vague, and they intentionally leave a lot of scope for discretion and interpretation in enforcement. I think that you are quite right; the behaviour that is described as "making trouble" could probably be brought within the scope of the law as it is at the moment.
Activities that are related to drugs could also come within the law.
Well, obviously, and so could under-age drinking.
And shouting and swearing. The beauties of the common law crime of breach of the peace are its flexibility and its breadth of application.
Absolutely. That is what I was saying, but you put it much better than I did. I picked out the "making trouble" category because that is the one about which I am most dubious, but it probably could be covered by breach of the peace.
What I am getting at is that everything that is detailed in your study could be dealt with under existing procedures.
Yes, but it is hard to think of things that could not be dealt with under existing procedures.
The bill provides for a power of dispersal, which is a dramatic proposal. I am trying to tease out your attitude to the situation as you have ascertained it to be according to your study. I want you to comment on the bill's proposal to make it an offence to congregate—in effect, that is what the bill will do. What is your attitude to the bill's provision on the dispersal of groups?
As your question implies, I do not see why the present law cannot be used to address the kinds of behaviour that are described in the presentation. Those are the main kinds of difficult, annoying behaviour that young people get up to when they hang out in groups on the streets. It is difficult to understand why it is necessary to introduce a new power. I assume that the intention is to make it easier to undertake proceedings against young people than it is at the moment. Does the bill simplify the process? I do not know.
Do you think that the power of dispersal, as defined in the bill, is a solution to anything?
The answer to that is probably in the answer that I just gave. In so far as it does not seem to add a power that is needed on top of the powers that exist, it cannot really be a solution to a problem.
As I was saying, a power of dispersal might make young people more aware that they should not be hanging out in large groups. It is not necessarily an effective deterrent, but it is explicit and it says to young people that if they hang out in areas, they might be dispersed and moved on. It might therefore become transparent to young people that that type of behaviour might not be tolerated by communities. Most crime prevention initiatives, such as surveillance cameras or target hardening, often just displace the behaviour to somewhere else. They do not necessarily tackle the root cause of why it is that so many young people hang out together. It is often a way of socialising with large numbers of people, but it is also often to do with a lack of resources or things for young people to do in an area. Such problem behaviour should be tackled at the community level, and things are being done in many community areas.
Before I ask about parenting orders, I would like to clarify something that I am not sure about. The existing law means that measures have to be taken against individuals. For example, if there were 50 youngsters drinking, or whatever, the police would have to charge them individually under the existing law. However, if we can just tell a group that it is no longer allowed to gather in a certain place, it might be a less traumatic way of dealing with the situation. Other means, such as community mediation, could also be used to sort the problem out.
You have probably thought more deeply than I have about the specific provisions that are envisaged. It might be that that would be an advantage of the power of dispersal. I had not thought of that when I was answering the earlier question.
Thank you.
I agree that there are going to be parents who have problems and who will not seek help or go to parenting classes of their own free will or without a lot of persuasion. I do not know how it will fall out, but I worry that parenting orders would be a largely disciplinary measure rather than one that was being used to offer something constructive that would help parents to address their problems. That is the issue as far as I am concerned. I do not know enough about the detail of the proposals to know how constructive the outcome is likely to be.
If the measure was for child welfare rather than a punishment for parents, would you be happier?
Yes, broadly. However, to go back to the point that I tried to make earlier, a variety of different things must be done to help parents and children in those families where there are bad relationships and parenting has broken down, including helping parents to improve how they behave towards their children, addressing the children's behaviour problems, and dealing with the resource problems that mean that the environment in which the family lives makes it difficult to improve how they behave towards each other. A variety of things might need to be done; it is crucial that there is a package of measures and that we do not simply regard punitive intervention as the central issue.
Do you think that parenting orders should be handed out by the courts or should they be a matter for the children's hearings system?
I think—and I am thinking back to the answer that I gave rather haltingly to an earlier question that related to a similar point—that that should probably be decided in relation to a very broad view about the direction of juvenile justice policy in Scotland, rather than in relation to one specific issue that is considered in isolation. The broad issue is, does Scotland want to continue to try to develop a juvenile justice system on the welfare model that was first set up by Kilbrandon—perhaps adapting that model, but in essence retaining its philosophy—or does Scotland want to move to something different? A broad policy decision has to be made before decisions are made about whether specific matters are for the children's hearings or for the courts. Such specific decisions would fall into place within the context of the broader policy decision.
I want to make a number of general points. I have to say that hanging about is extremely common, not just among young people, but among politicians in the run-up to elections, so I am surprised that the convener needed a definition.
In answer to your first question, I do not think that anyone has evidence that it is ever too late to intervene, but there is evidence that the earlier interventions take place, the more effective they are likely to be. Also, a number of different interventions that take place at different ages have a cumulative effect that is greater than that of a single intervention.
You made the point that some adolescents stop offending when they reach maturity whereas others clearly do not. Is there anything in the range of measures in the bill that might assist in stopping the offending behaviour of adolescents, given that they do not all stop offending when they reach maturity?
That is true—they do not. I made a clear-cut distinction between adolescence-limited offenders and life-course persistent offenders, but in fact the distinction is not so clear cut and there is more of a continuum. Nonetheless, a lot of work is going on in criminology on why some people give up offending whereas others do not—indeed, that will be the central issue that we will try to tackle when our cohort in the Edinburgh study reaches later ages. The answer will be to do with some people drawing the conclusion that the criminal way of life is not worth it anymore and that the costs of continuing with it are too high. It will also be to do with their ability to see an alternative—an escape route. Recent research suggests that people need to be able to see alternative ways of life that are viable and other ways of thinking well of themselves.
That leads me neatly on to a measure that I want to test with you. I take the point that no one individual measure will work in isolation and that we need to put in place a package of support measures. Restorative justice has been welcomed by practitioners and policy makers as something that works. One of the measures that is included in the bill is the community reparation order in which unpaid work is undertaken in the community. Do you have a view as to the efficacy of that approach?
I think that CROs, under which the youngster has to pay back something to the community, could be a valuable tool in the toolbox for dealing with certain young people. Evidence from a number of other countries that have major reparation and mediation programmes, including New Zealand and Australia, shows that such programmes are very effective, even for quite serious offenders. However, reparation and mediation programmes are most often effective when the youngster sees the consequences of their behaviour for the individual involved. Given the more general focus of the CRO, I am not sure how strong the evidence is that such a measure would be effective in dealing with offending behaviour.
I will move on to the bill's proposals on restriction of liberty orders. You work with young people who hang about. If some of them who had engaged in antisocial behaviour were unable to hang about, would that help them to address their offending behaviour or would an RLO be seen as a badge of honour, as some of the organisations that represent young people claim?
A restriction of liberty order on its own is not going to address effectively the offending behaviour; other measures also have to be put in place. If someone's liberty is restricted and they are sent home with an electronic tag, they might reflect on why they cannot go out and they might also see the restriction on their liberty as a punishment. If they are to address their offending behaviour, however, they will have to work with social workers and get involved in programmes. A restriction of liberty order can be a good way of getting a kid out of circulation and keeping them out of the way for a bit. It is an alternative to putting them into secure care, which has its own problems.
So as long as the extension of restriction of liberty orders to under-16s comes with the support that will allow the young person to address their offending behaviour, you would not have any objections to the provision.
All the research evidence on what works, which is now informing criminal justice social work in Scotland and will increasingly inform youth justice interventions, suggests that community-based interventions are much more effective and that they facilitate what is referred to as real-life learning. An institution is not necessarily one of the best contexts in which to get youngsters who have been locked up in it to address their offending behaviour and to reintegrate them into their community. A restriction of liberty order or tagging of a youngster is one way in which a person who is seen as risky can be kept in a community-based setting, and the research suggests that that is the most likely environment within which they will be able to change their behaviour. In that sense, such things might be useful, but on their own they will not necessarily change behaviour. Other things must be put in place.
I want to ask about your research into the dispersal of groups. You believe that the dispersal of groups expels people from communities. In my constituency, when we have a problem with up to 50 or 60 young people gathering, they do not always come from the community in which they gather and their antisocial behaviour does not affect the communities in which they live. Often, their parents bring them in to the community and drop them off. Did your research consider whether the young people came from the communities in which they gathered? Did you carry out any research into their socioeconomic backgrounds? I do not believe that only kids from working-class backgrounds cause antisocial behaviour problems. Often, kids from much more affluent backgrounds cause problems in communities other than their own.
The questions on hanging about that we asked and which I have presented relate to children who hang about in streets and public places in the areas in which they live. In certain sweeps of the study, we also asked whether they hang about in other areas. A small but quite significant proportion of them hang about in other areas, but the finding relates specifically to those who hang about in the areas in which they live. Antisocial behaviour is widespread across the cohort—it is not class related in any way—and happens in many areas in Edinburgh.
Would you like to make any concluding points?
I do not think so.
No.
On behalf of the committee, I thank Dr McAra and Professor Smith for attending the meeting and for the full and extremely helpful presentation. We are pleased that you have been able to join us.
Yes. There is no magic wand that will eradicate antisocial behaviour so it depends on the question that we are trying to answer and the problem that we are trying to solve. If we are asking whether the bill, if enacted, will mean that there will be no antisocial behaviour in Scotland, then the answer is of course not. If the question is whether the bill will improve our response to antisocial behaviour and whether the introduction of antisocial behaviour strategies will go some way to improving communities, the answer is clearly yes. The measures that are proposed in the bill will be an improvement rather than a hindrance.
As far as existing powers that are available to police forces in Scotland are concerned and, perhaps as pertinent, as far as numbers of police officers are concerned, do you consider that there are sufficient police officers in Scotland to enforce existing legal powers in relation to antisocial behaviour?
The question of police numbers is almost impossible to answer. If you said to me, "I will give you an extra 10 per cent on your budget so you can have more police officers", I would be able to deliver a better service—all forces in Scotland would be able to deliver a higher quality of service. I cannot answer that question in absolute terms—it is a question of quality and of what the people of Scotland are willing to pay for the police service that they want to receive.
Without going into the technical details of the matter, a poll has suggested that a large majority of people in Scotland want police officers to be more visible in their communities. Is that a reasonable aspiration?
You are absolutely right. Research by Her Majesty's inspectorate of constabulary in Scotland, in the "Narrowing the Gap" report, showed that, if members of the public were asked whether they wanted to see more police officers, they said yes almost universally.
Members of the committee will return to specific issues on which we would welcome your opinion.
The question of resources is separate from the proposed measures in the bill. The way in which police funding works is that there is an allocation of funds that we manage within the budget that we have, whatever the demands—whether they are new offences, particular disasters or major crimes.
Welcome, David. It is nice to see you again. Before we get on to the antisocial behaviour orders, I would like you to comment on something that came up earlier. I am not sure whether you heard the previous two witnesses talking about crime trends. Basically, they said that there is less crime, but that more people are reporting crime. I am not entirely sure about that and I wonder what you think. So many people say to me these days, "Och, I can't be bothered."
The evidence is that there is a narrowing gap between police-recorded crime statistics and the figures in the British crime survey. That suggests that a higher proportion of crime is reported to the police. We are going down the road of increased accessibility and visibility, we have improved ways for people to contact us—they can now report crime on the internet—and lots of community constables are holding police surgeries. The more opportunities there are for people to report to us, the more they will do so. There is a bit of a frustration for us. We want to engage constructively with communities, but we recognise that our doing so will probably lead to an increase in recorded crime as more people report what is happening.
I turn to antisocial behaviour orders. In the bill there is a suggestion that the age limit at which someone can have an antisocial behaviour order imposed on them should be reduced from 16 to 12. There is also the suggestion that the courts should be involved in that. Do you think that the age limit should be reduced and do you have a view as to whether the courts or the children's hearings system should be responsible?
I do not have a particular view on whether the ASBO should originate from the courts or the children's hearings system—I suppose that it should originate from wherever the case is heard. It would probably be useful to allow an antisocial behaviour order to be imposed on someone aged 15. If it is useful for a 16-year-old, it is probably useful for a 15-year-old. I can see the reason for a logical extension of the orders for 12 to 16-year-olds. There are circumstances in which that provision could be useful and I welcome its inclusion.
You have probably answered this, because you talked about it earlier, but do the police have enough resources to cope with getting involved in imposing more antisocial behaviour orders?
That depends on what time scale you are talking about. In the long term, our hope is that the demand will reduce. If we can reduce offending, particularly among younger and younger people, the knock-on benefit in two, three, five or 10 years' time will be a reduction in offending. If the orders are effective and prevent lots of offending behaviour, that should reduce the demand and the number of calls that we have to attend. The investment in time and people up-front would be well worth while.
I note from the ACPOS response that there is unhappiness with the provision on the dispersal of groups. I want to explore with you the root of that concern. Is it that, fundamentally, the police forces of Scotland do not wish to be the subject of ministerial control or is it that the power is likely to be of no practical use? I want to tease out the reason for the lack of contentment with the provision.
You are absolutely right. There are two distinct positions. Section 21 provides for the Scottish ministers to give directions to police officers. However, I do not see the circumstances in which that would be applied. There are a couple of points. First, section 20 allows for guidance. We think that that is sensible and ACPOS would work with the Scottish Executive to produce that guidance. However, while section 18 says that a constable "may give" directions to people to disperse and so on, section 21 says that the Scottish Ministers would issue directions in the exercise of powers. I do not see how a Scottish minister could give such directions.
The Scottish Executive clearly thinks that the powers are necessary. If 50 or so young people were still around when the police arrived, how would the police deal with the situation?
It depends what the young people were doing. As Professor Smith said, under-age drinking, drug-taking, shouting and swearing and so on would all be considered to be breaches of the peace, so the officers would deal with the behaviour that was in front of them. The provision in part 3 of the bill—which is a power to arrest people who do not disperse—extends police action to people who are present in a place and committing no offence other than being there. Clearly, if their behaviour was intimidatory or was causing alarm or distress, it would be viewed as a breach of the peace in any case. We think that it is inappropriate for police to move people on from a place where they are committing no offence.
Section 16 of the bill empowers a police officer of the rank of police superintendent or above to take action. Are you satisfied with the definitions in section 16 that relate to the police officer having to determine whether
You ask me whether I am satisfied with the language, but I have already said that we do not feel that the power is necessary. If there is a persistent and significant problem of antisocial behaviour in a relevant locality, action would need to be taken. However, that action would be along the lines of a problem-solving approach, working in partnership with others. We will do that through the antisocial behaviour strategy and community planning.
We keep hearing that the police do not need to be given the power of dispersal because they already have it. For absolute clarity, if an officer who is out on the beat tonight comes across a group of youngsters who are making a nuisance of themselves, does that police officer have the ability to move them on?
It depends what you mean by "making a nuisance of themselves". Are they committing offences?
Breach of the peace is a pretty wide-ranging, how-long-is-a-piece-of-string offence.
Indeed. The officer would have powers to deal with that. The vast majority of police officers use common sense and their discretion in dealing with such people. If a complaint is made, the likely response is that the police officer will speak to the young people and explain the situation. The officer will probably tell the young people to go away and give them a warning, saying that if the police are called back they will deal with them more severely. In most cases, young people understand that and move on. If they start shouting and swearing, they are likely to be arrested and reported for that substantive offence, but they will not be reported simply for being in a place and committing no other offence.
I have heard two concerns expressed about the new provisions. First, the bill in effect creates the offence of hanging about the streets. A group of young people could be behaving impeccably, just standing chatting and passing the time of day, but the fact that their community did not like their being there would be grounds for moving them on. Secondly, the bill seems to create a very bureaucratic procedure to enable the police to do something that they can do anyway. The chief constable has to go through the rigmarole of designating an area and notifying it in a local newspaper, blah, blah, blah. However, an officer who is on the beat tonight can deal with the problem as you have described, using a bit of discretion and common sense.
Yes. The offence is not hanging about—to use your term—but failing to disperse. The officer has a power of arrest for failing to disperse. The offence is not standing there, but failing to leave.
Yes, but the young people can be obliged to disperse although no offence has been committed.
Sorry?
Under the bill, the group can be obliged to disperse even if it is not causing any trouble or committing any offences.
It is not as arbitrary as that. There has to have been a persistent and significant problem of antisocial behaviour in that place.
But that could be entirely subjective. Many communities have serious, credible and legitimate problems, but the persistent nature of the problem could be entirely subjective. It could just be that a community has decided that it does not like young people hanging around street corners.
You mentioned the quite complicated process of implementing the provisions, and those conditions are imposed to prevent the decision from being arbitrary. There has to be full consultation with the community and the local authority. An advert has to appear in the local newspaper and the designation has to be authorised by a superintendent. Those safeguards are in place in response to your fear of the provision being arbitrarily administered. It is not something that is done simply on the whim of a constable who thinks that he will move people on; it is about persistent behaviour in a certain location, and it is the community response to the problem in that area.
In your view, does what the bill is trying to do add anything of worth to the powers that the police already have?
No.
I want to pursue two points on dispersal, which is quite an important provision in the bill.
No, I do not think that that is fair comment at all. A lot of what people would describe as antisocial behaviour is linked to licensed premises and people who are more than 18 years old.
I am talking specifically about dispersing the groups of youngsters whom we have already mentioned who hang around street corners. I entirely agree with your comment about pubs, but what about a group of young people who hang about a street corner chatting to one another? If the community does not like that kind of behaviour, those youngsters, most of whom will be under 16, could end up with a fine or getting imprisoned. Is such a response appropriate?
I do not think that that is likely. You describe the situation as young people hanging about a street corner, chatting. The measure is not aimed at that kind of incident. Instead, it is aimed at people who congregate in areas where there are persistent, serious and significant problems with antisocial behaviour and applies only to those who refuse to move on. It is not that people who are chatting on a street corner are liable to be sent to prison for three months. The offence would apply only to people who refuse to move on when a police officer turns up, points out that they are in a designated area and asks them to leave. There would have to be a wilful disregard not only of the section in question but of the constable's instruction.
It has been suggested to me that—
Can you keep this brief, Mike? We are running behind time.
Sorry. A number of people have suggested to me that the police will never use this part of the bill because they do not need it. As we have already pointed out, they have all the tools they need in their toolbox to cover all instances.
That is possible.
I was initially seeking some clarity on how we would go about designating a particular area, because we would all have a legitimate problem with the bill if it was simply intended to move on young people who were chatting on street corners. However, that is clearly not the bill's intention. As you have rightly pointed out, it is intended to designate areas where there have been persistent problems and contains a formal and robust process for doing that.
I am entirely at one with your comments on the need for proactive policing and community action to deal with antisocial behaviour. Members will know that we are taking an intelligence-led approach, which follows the national intelligence model and focuses on gathering intelligence from the community to identify hotspots of drug dealing, antisocial behaviour or road crashes and to target specific action at them.
I have a technical question. Is the crime of breach of the peace still defined with reference to causing alarm to the lieges?
Among other things, yes.
The lieges could be the inhabitants or residents of an area where a group of youngsters may be congregating.
One of the flaws in the bill's provisions for the dispersal of groups is that they do not apply to people who reside in the area. One of the challenges for the implementation of the provisions is how narrowly designated the area is to be. Those who reside in the area could be dispersed in any event.
You have not had much to say about parenting orders in your most recent evidence, although you mentioned them in your evidence to the Executive. You said:
This is an area where the police will be less involved than the reporter and the local authority. We are generally supportive of parenting orders—and I recall what Dr McAra and Professor Smith said about this in evidence earlier. The bill is full of measures ranging from prevention through to enforcement. For us, the parenting order is somewhere in the middle: it is not quite a big stick, although there is some form of compulsion for people to attend counselling and guidance sessions. To answer your question, I think that it is possible that parenting orders will be helpful. Therefore, we are happy to support that measure.
Restorative justice has been welcomed by policy makers and practitioners alike. I believe that your original suggestion was that there should be no upper age limit to community reparation orders. Is that still the case?
Yes. I am not quite sure why an upper age limit of 22 is applied to them. We are very keen on restorative justice. Processes for restorative cautions for young people are being rolled out across Scotland at the moment. We think that the community reparation order would be a good way of getting a message across to young people under 22 or 23 that there is a consequence to their behaviour, and that their crimes are not victimless. Such orders are a not inappropriate response by society to those people's offending behaviour. If they need to try to put some of those consequences right, they might think twice about offending in the future.
The committee has heard diverse views on the use of restriction of liberty orders. Some witnesses believe that those orders might play a part in addressing offending behaviour; others believe that the tags could be seen as a badge of honour. In your response to the Executive's consultation, you expressed concerns that communities might view the use of tagging as a soft option. Your response to the committee's consultation did not include that point. What is ACPOS's view on the use of restriction of liberty orders? Might they have a role to play?
Restriction of liberty orders may have a role to play. It is a difficult question to answer, because we have not seen any evidence of the extent to which the tags could be seen as a badge of honour or the extent to which they constitute a helpful restriction on behaviour. As far as adults and the disposals that are currently available from the court are concerned, we have found that restriction of liberty orders have been effective in keeping people indoors. If someone has been out on the street offending persistently, and if the restriction of liberty order keeps them indoors and prevents that offending from taking place, we think that that option is worth pursuing. It is possible that the orders could be a useful measure.
If restriction of liberty orders become used, are there likely to be resource implications for the police in ensuring that orders are used and monitored effectively, without breaches taking place?
As I understand it, the monitoring will be done in the same way as it is done at the moment, by a private company. The police will not be responsible for monitoring compliance with the order. If the net result is that offending behaviour is reduced, demand on the police will be reduced and we would welcome that.
Do you have a view on fixed-penalty notices? Two views have been expressed to the committee. One is that fixed-penalty notices might involve confusion between the police's responsibility to enforce the law and the responsibility to dispense justice, which properly lies elsewhere. The second view is that where fixed-penalty notices are already used, in motoring offences for example, there might be little dispute about whether an offence has been committed, whereas areas such as noise or nuisance are much more subjective, so fixed-penalty notices might be less appropriate. Do you have a view on those points?
On the separation of disposal from reporting, police officers use their discretion at the moment and they can sometimes warn people and move them on. The police officer is already involved in making a decision about what happens. If the fixed-penalty notice replaces having to do a full standard prosecution report, it will cut down on bureaucracy and paperwork and be much more effective.
On the same subject, did I understand you correctly when you said or implied that fixed-penalty notices might save police time rather than add to it?
Earlier I heard the phrase "net widening". We must ensure that we do not start issuing fixed-penalty notices for behaviour for which we simply caution or warn people at the moment. The fixed-penalty notice is an alternative to full reporting to the procurator fiscal. If it stays at that high level, that should save time and bureaucracy.
What are your views on the provisions on closure of premises? SACRO expressed the view that closing premises does not necessarily solve a problem but just moves it elsewhere.
SACRO might be right, but it might not be. The provision does not apply to residential areas, but if a disused shop is being used for antisocial behaviour, closing it down might well be part of the solution. It will not be the only solution, but it might be part.
Are there any other questions?
I have one brief question. You are saying—
Will you please make it brief?
It is.
Because I cannot predict the future with certainty. However, it is likely that such a prohibition will assist, and we support the measure.
Chief Constable, do you want to make any concluding points?
No, you have given me a fair hearing.
On behalf of the committee, I thank you for being here. It has been a helpful session.
Meeting suspended.
On resuming—
I welcome Douglas Keil, who is the general secretary of the Scottish Police Federation—we are glad to have you with us, Douglas. You will be familiar with the format. Members want to explore various issues. As I have said to previous witnesses, I am glad that you have been able to listen to the earlier evidence, which may have given you an indication of the issues that are coming forth.
Yes, that is our clear view. To explain the point graphically, in 1997 we had 15,050 police officers in Scotland, but in the two years to 1999 there was a drop of 374, which took us down to 14,676. Since 1999, largely because the federation has campaigned for extra officers, the number has increased and at present the figure is 15,560. However, around 380 of those officers are part time, which means that, if we express the total as a full-time equivalent, we have not many more officers than we had in 1997. If you consider the new duties that have been placed on police officers in the six years since 1997, you will understand why we think that we are short of officers.
You feel that you have inadequate numbers of police officers at present. Implicit in that is the point that, if the bill is enacted, the number of officers will be more inadequate because a greater responsibility will fall on the police as a result of certain provisions in the bill.
One or two of the provisions will have a minor impact on police resources, but, to be frank, I do not think that there is much in the bill that will create a great deal of extra work for the police. In part, that is because I believe that the power of dispersal will hardly ever, if ever, be used.
So your main point is that the existing law covers the situations that the Executive is trying to address, but that the law is not being adequately enforced because of an inadequate number of police officers in communities.
We agree with the Executive that antisocial behaviour is a big problem, but we think that the situation would improve if we had more police officers to use the existing powers.
The federation is in favour of the extension of antisocial behaviour orders to under-16s. The bill suggests that the minimum age should be 12. Should the courts or the children's hearings system be responsible for making the orders?
We did not take a strong view about antisocial behaviour orders for under-16s. We are quite relaxed about that proposal and tend to think that it is for others to decide on. I can understand why the age of 12 has been mooted—we would not object at all to that being the age.
Should ASBOs be made by the court or by the children's hearings system?
There needs to be co-ordination. We felt that, if antisocial behaviour orders were extended to those below 16, the process could become circuitous unless the roles of the court and children's hearings were co-ordinated properly.
Will dealing with breaches of ASBOs have a resource implication?
The resource implication will be minimal. At the moment, the police act when an offence is committed. Whether that offence is an original offence or a breach of an antisocial behaviour order will not make much difference. Breaches will not greatly increase the number of offences with which we have to deal.
I know that the federation is opposed to the provision on the dispersal of groups—you have explained the reasons why. However, Karen Whitefield has a specific instance to which she referred earlier and on which it would be helpful to get your opinion.
I appreciate why you hold your view, but, every couple of nights, one village in my constituency comes under siege from between 40 and 50 young people, who regularly congregate there—some are from the village, but others are from neighbouring villages—and hang out together. The group prevents other young people who live in that village from attending the local youth club that they organise because they feel intimidated and threatened. Local residents are concerned about the group's behaviour, which often causes an obstruction in simple ways, such as preventing people from getting in and out of their drives. The situation causes general unease in the village.
No, not at all. I represent all police officers from chief inspectors down the way—that is about 98 per cent of Scottish police officers. We have consulted them two or three times specifically on whether they need such additional powers and the unequivocal answer has been that they do not. Think about the powers that already exist under breach of the peace—which can include disorderly conduct, conduct that is calculated to provoke a breach of the peace, causing alarm and annoyance and, in the most serious of circumstances, mobbing and rioting—and take the statutory powers under the Civic Government (Scotland) Act 1982. Every police officer to whom I have spoken has said that there are more than enough powers; the problem is that they do not have time and resources to dedicate to the issue.
Might there not be a case in which it is not appropriate to arrest one or two people but in which we need to stop large numbers of people congregating in one community regularly? That is the problem. The local community has no problem with the local young people who live in the community meeting up and hanging out at the end of their street. What people object to is the impact of having such large numbers of young people, many of whom do not even live within the community—they come in by public transport from another village and sometimes they may even be dropped off by their parents.
Before the powers could be exercised, a senior police officer at superintendent rank or above would have to go through an extremely bureaucratic process to give an authorisation for the area. One of the first things that would need to be done would be to establish that the public were alarmed, disturbed or distressed by the actions of the group. Once that was done, the local authority would need to be consulted. The authorisation would then need to be publicised by being stuck up in various prominent places in the area. To get to that point would require so much police work from officers on the ground and from the superintendent that it would be far better to dedicate that effort to dealing with the problem itself. There are so many hurdles to overcome before the authorisation for an area could be given that a great waste of police time would be involved.
I suppose that the community could argue that it is already being stigmatised and victimised. That community might see the authorisation not as stigmatisation but as sending out a message to the wider community that such behaviour will not be tolerated from young people or, for that matter, from older people. It is not always just the under-16s who cause the problem. Sometimes the disturbances in the community are caused by people as old as 30 who hang about the streets. Although a police officer who comes along will not have the power to decide that hanging about should not be allowed in an area, the measure will give communities the power and back-up from local authorities and the police to be able to say, "Enough is enough. We are not going to accept this." The measure sends out a signal that those communities have the support of all agencies in addressing the problem.
To put it simply, those whom I represent think that that can be done now.
I have immense sympathy with your views. I think that you are right to say that the powers already exist and that the problem is that the police have neither the time nor the resources to use those powers. However, if I may just play devil's advocate for a moment, I want to ask how you would respond to the argument that prevention is better than cure. Rather than having police officers dealing with the problem as it arises night after night and weekend after weekend, would it not be better to designate an area and to prevent, or at least to try to prevent, the problem from occurring in the first place? Would that not be a better use of time, which might free up the police to do other things? How would you respond to that argument?
I certainly do not think that police actions should be confined to arresting people or to chasing them around the street. That is not the point at all. If we had sufficient community beat officers, we could begin to build relationships not just with young people but with all people. That would develop trust and might lead to the return of a degree of respect for authority. Where there are community beat officers, that is precisely what happens—they develop relationships and it is then easier to explain to young people why their presence on a particular street corner might not be best for all concerned and why they might be better moving on elsewhere. That is the best way of dealing with such problems, if there are the time and resources to do so.
I will ask you what I asked David Strang. It has been suggested to me that part 3 of the bill, if indeed it remained in the bill, would not be used. What is your view on that?
I find it hard to envisage a set of circumstances in which it would be used.
You think that the police would simply not use part 3 of the bill.
I cannot see when it would be used. I must pick up something that Mr Strang said. The provision in the bill that I am most concerned about is section 21. The power of direction that it proposes is probably the most important issue in relation to the police that the Justice 2 Committee is ever likely to deal with. We are talking about the chief constables' operational autonomy, which is an issue that goes way beyond the terms of the Antisocial Behaviour etc (Scotland) Bill.
I want to clarify two points. I might have misread section 21, but I understood that it related to the designation of an area and that, because that is a serious step to take, the suggestion was that the Scottish ministers should do that. Have I picked that up entirely wrongly? You are suggesting that the proposed power of direction is far greater than that.
Section 21 says that the power of direction relates to part 4 of the bill. To me, that means the whole of that part. If we take the interpretation of section 21 to its extreme, it suggests that the Scottish ministers could designate a particular area as suffering from an unacceptable level of antisocial behaviour simply by lifting the telephone and directing the chief constable to put a number of men there, to have the area authorised and to get the situation sorted out. That flies in the face of everything that we know and understand about the democratic position of the police in this country.
For the sake of clarity, I point out that section 21 refers to part 3 of the bill, but it appears that the powers that are given to the Scottish ministers embrace all the sections in that part of the bill.
I want to pursue the point so that it is clear in my mind. If it were clearly defined that the ministerial power was to be exercised simply in relation to the designation of an area—which, in itself, is quite significant—and that that was to be done at the end of the process rather than at the beginning, as you suggested in your example of a minister simply lifting the phone to speak to the relevant chief constable, would you have the same reservations? That is the issue that I am struggling with, so I will make you struggle with it, too.
I understand that the police must come under the direction and control of the Government; in my mind, there is no question but that that must be the case. However, there must be a separation in relation to operational matters.
Okay, we will leave it at that for now.
It is not for me to interpret how the Scottish ministers intend that the bill will apply. I find it extremely difficult to envisage a set of circumstances in which a superintendent would say that a problem was significant enough to authorise the designation of a particular area. If there are persistent problems and there are sufficient police resources, the two will meet. There is no doubt that a beat officer knows precisely where the difficulties in his area are; it is simply a question of whether he has the time and resources to deal with them.
If the power is enacted, it is foreseeable—for the reasons that Karen Whitefield outlined in relation to the community that she described—that there will be significant pressure on police forces from communities. I suspect that in the first instance pressure may not be applied by the Scottish ministers. However, I understand that residents groups, community councils, community activists, shopkeepers and residents will phone local divisional officers to say that there is an act that gives them power to do something and they should do it, because a large number of youngsters or others are congregating at a location. It will be very difficult for senior police officers to resist that pressure. I am concerned about what will happen if they cannot resist it—it is foreseeable that it will be difficult for them to do so—and an area is declared a no-go area for individuals. In any community, there is a predictable number of known havens where people can congregate. The difficulty is that those people will become peripatetic and go on a journey that ends only when every area has been designated.
That is a possibility. We have expressed concerns about raising levels of public expectation. The circumstances that you have outlined are definitely possible. Everything depends on the time and resources that we have and on the view that we take of the seriousness of the type of call that you have described, as compared with a call about housebreaking or a stolen vehicle. How should we respond to such calls? Do we appreciate the negative impact that antisocial behaviour has on people?
So you anticipate that, even if an area were designated and hurdles 2, 3 and 4 had been safely crossed, designation could be counterproductive. You anticipate a series of phone calls to the police from people saying, "They are back in that park. Get out here at once."
Absolutely. For very good reason, we cannot always attend an incident, either at all or as fast as we would like to. That is the subject of complaints from the public. I agree that it is terrible when someone telephones the police and, because of the work load in other areas, officers cannot attend. That is extremely disappointing. There is a danger that the bill will raise the levels of public expectation and lead to an increase in the number of complaints.
If the provision is implemented and is to work, it must have a resource implication for the police force, or the police will not be able to attend to all the calls demanding that miscreant individuals who have been found in a banned location be dealt with.
Given the conditions that must exist for the power to be exercised, the police resources that are required to create an authorised area could better be deployed in dealing with the problem in the first place.
I have one brief question to which you may be able to give a very brief answer. In your written evidence, you say nothing about parenting orders, so I assume that you are in favour of the Executive's proposals in that area.
The Scottish Police Federation did not take a position either for or against parenting orders.
I have a similar question about community reparation orders. I know that the police are in favour of restorative justice. Are you equally in favour of community reparation orders?
In response to Scottish Executive proposals other than the bill, we have expressed our support for community reparation orders.
I have a question about the extension of restriction of liberty orders to those under 16. Does the federation think that such orders might have a positive effect in addressing offending behaviour?
I will quickly mention that an excellent pilot is taking place at Hamilton youth court, in which RLOs are being used as an alternative to remand. We are extremely happy about how that pilot is going. I must say that it is 100 per cent funded by the Scottish Executive, so it is easy on this occasion for us to apply resources to the initiative. However, as I understand it, and as Mr Strang said, the RLOs that are proposed in the bill would have no policing implications because the monitoring firm, rather than the police, would deal with breaches of the orders.
So you would have no objection to the use of RLOs.
No.
Very briefly, we would like you finally to comment on the parts of the bill that relate to fixed penalties and to the closure of premises. You have dealt with both parts extensively in your submission, but this is an opportunity to add anything or to put anything on the record about either part if you want to do so.
We think that powers to close premises might well be useful on occasions.
If members have no final questions, do you want to make any concluding comments?
No, I am satisfied, thank you.
Thank you very much for joining us this afternoon in a very helpful session.
Meeting closed at 16:18.