The main item of business this morning is stage 1 of the Criminal Justice (Scotland) Bill. It gives me great pleasure to welcome the Scottish Executive officials who will speak to us about the bill. I ask Jane Richardson, who will lead for the Executive officials, to introduce the members of her team and speak to us briefly about the bill.
We are grateful for the opportunity to give evidence on the general principles of the Criminal Justice (Scotland) Bill. I am the bill team leader; I also have policy responsibility for the public protection proposals in part 1 of the bill.
Thank you for that clear explanation. I now hand over to the convener so that we can begin to ask questions.
Good morning. I apologise for my slight lateness—I was taking part in a discussion on "Good Morning Scotland" on this very subject.
I gave the appropriate explanation, convener.
Thank you, Bill.
Would one of the witnesses run through the tagging process and the checks that exist?
I will use the present restriction of liberty order projects as an example.
Can you explain the mechanics of the system? How is the tag fitted? What happens if the offender takes it off?
If the offender takes off the tag, the system records a strap tamper. That sends a signal to the monitoring unit, which is followed up by the contractor in the manner that I described.
What time scale would be involved between the signal being sent and the offender being contacted?
Contact, by means of a telephone call, usually takes place within 15 minutes of the tamper.
What if the person is using a mobile telephone?
A land line would be used.
The system down south has a history of being circumvented. Are you prepared to guarantee that it is foolproof?
In the four years that we have been piloting the system, we have had no major incidents. The tag can be cut off, the offender can leave the house or can be late for their restriction period, but those would be breaches of the order. The contractors are obliged to notify the court that someone has breached their order and the court would take action at that point.
You said that there had been no major incidents. Would you care to outline the minor incidents?
The minor difficulty is that offenders who have chaotic lifestyles cannot be prevented from breaching their orders. However, the system is so exact that they cannot avoid detection. The monitoring unit always checks that the transmitter is working. The company performs 28-day equipment checks to ensure that everything is working. The monitoring unit stores information for up to five days and the system is backed up with a battery in the event of power loss.
Does the company have any discretion about whether it reports breaches?
No. It is contractually obliged to report breaches.
To whom at the court would the breaches be reported?
The company would fax a brief report to the sheriff clerk's office, which would record the breach. The sheriff would then decide whether he wanted to cite the offender for the breach or take no further action.
There are a few more questions on that topic. Once we have covered those, we will turn to the bill and move through it logically. There are a lot of important issues and I do not want to miss anything.
Are tagging orders available to people who live on their own?
Yes. However, an assessment is undertaken before anyone is tagged and that is taken into account by the social work department when it prepares its reports for the court. Factors such as whether someone is responsible for looking after their parents or has a pet are noted.
That means that the restriction is not necessarily to the space within the walls of the offender's home but could be a little wider.
No. Contractors usually restrict the area to the parameters of the home. If the offender goes out of their front door, a violation will be recorded.
So someone who lives on their own would be unable to leave their house to go shopping or do any of the other activities that a single person would require to undertake.
It depends on the hours of restriction. The court might consider the offending pattern of the offender. If the offender is prone to housebreaking in the evening, it is likely that the court will impose a restriction period of 6 pm to 6 am. There are offenders who housebreak during the day and the courts usually restrict them during that period, but they also take into account home circumstances. Quite a few assessments are made that are not converted into orders for reasons such as the person living on their own or having family commitments or arrangements that would cause difficulty.
I take it that the system can cope if the telephone line is damaged.
The system can cope with that. There is a back-up battery in the monitoring unit and in the transmitter that is worn by the offender. The monitoring centre will send out a monitoring officer who will remove and replace the box, and download the information into the computer system in the control centre.
I have two brief points, one of which is about the technicalities of the tagging system. Are there such things as black spots, as there are with mobile phones?
When the monitoring officer goes out to install the equipment, he does a range check around the house. He checks to see whether the monitoring unit will pick up the signal when the offender is wearing the tag. At some point, he will ask someone to put their foot into a metal bath, because old metal baths sometimes block the signal. If the signal is blocked, the range can be adjusted or another monitoring unit can be fitted so that the signal will be picked up.
My second question picks up on an answer that you gave to Bill Aitken about the breach process. Would that process be akin to a breach of community service or probation orders, for which there is a formal court procedure, or is there a way of circumventing how the courts work?
It is a formal breach procedure in court. If an offender is cited, he has to appear in court. It depends on how quickly the sheriff wants to see the offender.
When there is a breach or the offender has tampered with the tagging system or removed the tag, how quickly is he likely to appear in court? Is it a matter of days?
It can be anything from days to weeks before the offender first appears in court. I do not think that that is any different from any other form of community disposal. We are considering ways of fast-tracking breaches of community disposals.
What types of offenders would the system be available to?
Over the four years of the pilots, the system has been used for a range of offences, such as theft by housebreaking, car theft, shoplifting, and some drug offences. The pilots have been pitched at high-tariff disposal, so the people who have been tagged are generally those whom the sheriff or courts are thinking of sending to prison.
Given that tagging is an alternative to custody, might the public be concerned that if those offenders who would have normally gone to prison commit a breach, it might be weeks before they go to court? If the offender has been convicted of housebreaking or car theft, the breach might leave them free to commit crime during that period.
In general, when the order is breached, it does not stop—the offender continues on his order. The electronic monitoring staff are trained to explain to the offender the seriousness of breaching the order. After a breach takes place, we find that the offender generally settles down. When the offender is given a court date, the monitoring centre gives an update report to the sheriff, which sets out the offender's compliance since the breach and states whether the offender has continued to comply with the order. The report may have an effect on the sheriff's determination of the breach of the order.
Is the system costly to implement?
A six-month order costs about £13,000.
Depending on which figures are used, that is not cheaper than prison.
It depends on which prison—
Or on whether they are the unbelievable figures of Kilmarnock prison or those of the Scottish Prison Service.
I am sorry, I understand that the figure is £6,000. The figure that I quoted was for a six-month prison sentence.
Is that £6,000 for a six-month period?
Yes. The more offenders that are tagged, the cheaper the system becomes.
I am sure that we will come back to that.
What happens if the offender needs to go to the dentist urgently and the dentist's surgery is a mile from the offender's home? How is that circumstance covered?
As far as routine dental and doctor's appointments are concerned, the offender is told, in person and by way of literature, that such appointments should be made, wherever possible, outwith the restriction period.
Let us say that the offender is one of those fellows who break into cars and houses. If he genuinely has a hospital appointment—an appointment card can be shown—what check is made that he spends all the time that he is missing from the house at the hospital?
The offender will show the appointment card to the monitoring centre. The centre will then telephone the hospital for verification of the time of the appointment. The centre will also verify the time that the offender left the hospital. If the appointment is likely to last for one or two hours, the monitoring centre will do a drive-by, which means that a hand-held monitoring unit is used to pick up signals from the tag. Monitoring centre personnel can stand outside the hospital with the monitoring unit and pick up the signal from the tag.
They can, but will they?
They do. They are contractually obliged to do so.
Thank you.
Can the system interfere with hospital equipment, as do mobile phones?
No. The system has been tested. Offenders can go into hospital wearing their tags and have procedures carried out without the tags affecting hospital equipment.
Thank you. We move to part 1 of the bill, which deals with protection of the public at large.
I have a simple question, which is in the context of criminal justice. Is it envisaged that the risk management authority could extend its remit over time to other risk management activities in other parts of the Scottish Executive?
Broadly, the idea behind the risk management authority is that it should deal with the risk assessment of and the risk minimisation of offenders. The authority's initial remit is envisaged to be the provision of guidance and advice on the risk assessment of and risk minimisation of offenders, with particular interest in the category of high-risk offender, which would attract the new sentence. However, it will be open to the RMA to develop its expertise on risk assessment and risk minimisation in a wider field. The existing provisions would need to be extended to allow extension of the high-risk offender category.
Why was it decided that the risk management authority should not be directly responsible to ministers? Will you tell us about the accountability of that body?
It was agreed that the authority should be at arm's length from ministers because of the nature of its work. We would like the RMA to become the centre of expertise on risk assessment and risk minimisation. After research and review, it was thought that the best way for the organisation to operate would be to work independently, but to be accountable through the public authority route. That would also mean that expertise that would not necessarily be available from central resources or central services could be employed to provide the service.
Will you explain further your point about expertise? Why is it likely that there would be a deficiency of expertise if the authority were somehow closer to the Executive ministers?
The Executive does not necessarily employ people with the expertise required to work in the RMA. However, the RMA will be a public authority and will be accountable in that respect.
For the sake of clarity, will you explain exactly how its accountability will work?
The bill will provide for the normal accountability route for a non-departmental public body. The authority will provide annual reports to Scottish ministers and the Scottish Parliament and will be structured in accordance with the statutory requirements for a public body.
It would be helpful if the committee could have an overview of how orders for lifelong restriction will operate.
Certainly. I apologise, but I missed a point, which my colleague has pointed out to me. Ministers will also be able to issue directions to the RMA if they see fit, so there is also a degree of control in that respect. The bill provides for that.
Yes—that will do to start with.
That is where we will look to the RMA to produce guidelines, standards and a framework that the lead authorities that are involved in the care and supervision of the individual can work to. That will provide for consistency in the approach taken by those authorities. When the individual is still in custody, the risk management plan will deal with issues that the SPS may consider could contribute to the minimisation of the risk posed by the individual. Post-release, the plan will deal with supervision and treatment and with rehabilitation programmes.
I am beginning to understand how the plan will operate, but I am not clear about what the plan will mean in practice for the individual. What is the lifetime restriction? Will the plan restrict what an individual can do and where they can go?
The plan could include restrictions on the individual's movements, in much the same way as conditions that are imposed by the Parole Board for Scotland could include such restrictions. However, the plan would be tailored more appropriately to the needs of high-risk offenders. The overall objective is to ensure that the risk that the individual presents is kept to a minimum.
Which agency will conduct the supervision?
The agencies that are responsible for offenders at present will remain responsible for them. When an offender is released, local authority criminal justice services will be responsible for maintaining supervision, looking after the offender and dealing with him in much the same way as they do at present, except that the supervision will be much more tailored to the individual's needs.
I have a couple of questions. My first is partly based on Jane Richardson's comments on the option for ministers to direct the risk management authority. I am curious about the advantages of such a provision, given that the risk management authority will be a non-departmental public body. On one hand, the authority will have the advantage of independence, yet, on the other hand, that advantage is diminished by the ability of Scottish ministers to direct particular functions of the authority. In addition, it seems that ministers will have the power to make directions although they will not be responsible for the authority in a more direct sense. That seems to be a slight contradiction. Secondly, perhaps you could direct me to the provisions in the bill that will allow an appeal against a decision of the authority.
I will deal with your second point first, if that is acceptable. I take it that you are asking whether a direction issued by the risk management authority is appealable.
Yes, exactly.
The bill makes provision to allow a direction of the RMA that is viewed as unreasonable to be appealed by the body to which the direction is given.
I beg your pardon. Is the direction appealable by the individual who is affected by that direction?
The RMA has no control over individuals. It will be able to issue directions in the form of guidance to bodies such as the Scottish Prison Service or the local authority, which, for the purposes of the bill, are known as lead authorities. If the lead authority considers that the direction is unreasonable, it may appeal.
I was asking about the link between responsibility and accountability. You were making an additional point about the fact that ministers could direct that body in a particular instance. It might be useful if you could give us a comparison with another NDPB in the same position. I can think of many where, technically, there is accountability but Scottish ministers say that they are not responsible and they cannot direct. What comparison would you give?
I can only refer to the provisions that we have set up. It is not necessarily helpful to try to compare with another NDPB. It is proposed to set up the RMA broadly following the guidelines for the setting up of new NDPBs. I understand that the power of direction is a routine power that ministers adopt in those circumstances.
Can you give us an example?
I am sorry, but I am not familiar with many other NDPBs. As I said, we have followed the guidelines for the construction of an NDPB.
The committee would find it helpful in understanding the status of the agency if the Executive could tell us whether it is a new arrangement or whether there is something to which we could compare it. Is that fair?
Yes.
In relation to serious, violent and sex offenders, what is it about the provision that will make the public safer? The issue is protection of the public.
As I said earlier, the issue is about protecting the public. The proposal seeks to ensure that those individuals will be assessed and dealt with in a uniform way. They will be given an order for lifelong restriction and that means that they might be subject to supervision for the rest of their lives.
It would also be helpful if you could define what you mean by a handful. I realise that we are talking about a small number of offenders, but it would be useful to get some statistics. Is that possible?
We considered the issues and tried to apply a rule of thumb to the number of individuals that get discretionary life sentences. We are looking at approximately 10 per year at the most.
Grampian police are incurring substantial additional costs in looking after the sex offender Stephen Beech. The orders for lifelong restriction will potentially involve geographical constraints and create quite significant workloads for police in particular areas. Is it envisaged that local authorities will be given specific funding for that burden that might be placed upon them?
The agencies that are responsible for high-risk offenders after they have been released will, broadly speaking, be doing what they are at the moment. However, the RMA, using an order for lifelong restriction, might be able to assist those agencies to do that in a more concerted and uniform way. The bill provides for the RMA to make recommendations to Scottish ministers if it thinks that additional funding might be required to assist a local authority or any other lead authority to implement a risk management plan.
Part 2 of the bill deals with victims' rights. I know that members want to ask a few questions on that subject, but first it would be helpful to hear an outline of how the victim statement system would operate.
You will appreciate that this is a new process that is yet to be tested in the courts. For the first time, victims will have a right to have their feelings about a crime relayed in the court. We have consulted extensively and have sought to strike a balance between what needs to be in the bill to enable this scheme to operate and the administrative details that we will take forward by means of a steering group that will involve the key agencies.
When would the reports be compiled? Would it be prior to the trial or afterwards?
The victim would be invited to make a statement at the point at which the decision was made to proceed with the case.
A person might be charged with a serious offence, but ultimately be convicted of a lesser offence and have certain charges deleted. If the victim statement made reference to some of the things that were contained in the original indictment—it might, for example, involve detailed descriptions of a physical assault—I can see that that might cause problems.
There are problems in that regard and I have had discussions on that point with the Crown Office. We will have to give further consideration to how that can be dealt with in court as there is nothing in the bill that allows for amendments to be made to the statements. In the normal course of events, papers that are available to the court can be amended as charges change. We imagine that that would pertain to the victim statement as well, but it is a different piece of information and we must give serious consideration to the ways in which it might be amended.
How can we ensure that we do not give victims false expectations about the setting of the tariff for the offence? How do we make victims understand that, ultimately, it will still be the trial judge or the sheriff who will impose the sentence? How can we convey to people that this initiative will not be a complete change to the legal system?
It is fundamental to the proposal that we achieve that awareness. The guidance that will be available to the agencies that are involved in advising victims and the guidance that is written for the victim will spell that out as clearly as possible. Part of the evaluation of the pilot scheme will be to see how successful we are in doing that. From the outset we would establish a culture that would ensure that people were clear about the purpose of the victim statement.
It is proposed that the age of 14 should be the cut-off point for a young person being able to make their own statement and that it would otherwise be their primary carer who made the statement. Given that 12 is the age that is used when determining whether a young person can consent to medical treatment or legal representation, why was 14 chosen in this case? Might 12 be a more sensible age to choose, given that, in the arena of children's rights, there is a confusing panoply of ages for various things?
You are right and, in the long term, we will probably choose to do what you suggest. One difficulty is that the initial proposals did not extend to children. That was simply because the scheme is untested. We are concerned about the implications of challenges to the victim statement. There is the possibility that the victim might be intimidated with regard to their statement and so on and we were seeking to protect children from the untested ramifications of the scheme. The bill allows for the age level to be reduced and we could give consideration to reducing it for the pilot scheme.
Would the victim statement be available to the accused or their representatives in advance of conviction?
The bill does not allow for that at the moment.
I understand the superficial attraction of the proposals and I think that most of the responses that we have received do so as well. However, I have a number of questions.
It is intended that it will be subject to challenge.
What would the challenge procedure be? On what basis would the defence lawyer challenge it?
One would assume that matters of fact would be open to challenge. It would be hard to see how it could be challenged in terms of its impact. However, I suppose that certain aspects could be subject to challenge. For example, someone might say that the effects of the crime were such that they were unable to go outside their house, but they might have been seen outside.
Have the rules of procedure that would govern that interaction, rebuttal and challenge been drawn up?
No, not in detailed terms.
Without those rules of procedure, how would we know whether victim statements could be challenged?
I have been in discussions with the Crown Office about how those challenges could be made. We are giving the matter further consideration. It is crucial that victim statements can be challenged in court.
When would the committee be able to see those rules of procedure and judge whether they are effective?
The discussions that I have had with the Crown Office were uncertain as to the detail that would be required for the committee. However, we intend to complete that work as soon as possible.
Can you give us a rough estimate? Will the rules of procedure be available in one, two, three or four months' time?
They will certainly be available before the bill proceeds to stage 2.
Let me clarify that point on behalf of the committee. If we are expected to scrutinise and determine whether the provisions on victim statements are workable, we would expect to receive the detail well before stage 2.
I had not anticipated that those provisions would need to be in the bill, but we can certainly proceed on that basis.
We have a constant debate with the Executive about the extent to which the committee scrutinises legislation. We have always taken the view that we want to consider the rules, regulations and procedures that accompany a bill. We are trying to ascertain whether the provisions on victim statements are practical and workable.
I appreciate that.
It would be helpful to receive that information—we can liaise with you on that point.
This is a matter for stage 1. The bill contains the clear principle that victim statements should be capable of being rebutted. I would find it extremely difficult to proceed if the rules of procedure that govern the process of rebuttal cannot be stacked up with that principle.
No, not all. Victims feel that they do not have the opportunity to say directly what they feel about the offence. Matters of fact are related, but there is no information about how the offence has impacted on the victim psychologically. That is where the thinking has come from.
If that is true, I am left confused by paragraph 68 of the policy memorandum, in which the Executive says:
That is not the intended implication. The development of the idea of victim statements and the bill was driven by the views of victims and their need to have some part in the criminal justice process.
But the thinking behind the provisions must have taken one of two approaches: either a victim statement gives the victim the opportunity to sound off and get their thoughts on the record, or it is an attempt materially to impact on the sentence that is to be passed down. If it is the latter, surely—by definition—the present procedure is not sufficient.
In certain cases, the full panoply of information may not be available to the courts. A victim statement will be one aspect of the range of factors that a sentencer will take into account.
Therefore, in your view, if we are improving the current process, it must be flawed.
That is probably the victims' impression.
But does that explain the policy thrust in the policy memorandum?
The policy thrust behind the memorandum leads from the victim's perspective.
So that is the policy thrust.
The policy thrust comes from the "Scottish Strategy for Victims", which was published in January 2001. There are clear commitments in that strategy to increasing the participation of victims in the criminal justice system. Those commitments were the result of discussions that the Executive had and representations from victims' organisations. We considered the fact that there are victim statements in other jurisdictions; they have been evaluated and have been found to be useful. The policy thrust is to give victims a greater say and show them how the system works to their benefit. There seems to be a gap in perceptions. The policy thrust does not come from a problem with decisions that are being made, but victims might want a more transparent process.
With the greatest respect, I understand that absolutely and accept that if there are problems with perceptions and people think that their views are not being listened to at a crucial stage in proceedings, that must be addressed. However, that is not the policy position that is outlined in the policy memorandum, which does not simply suggest that people should understand and participate in the process but includes a deliberate policy intention to impact materially on sentences that are passed down. Is that understanding correct?
That is not the intention. The intention is that victim statements will be taken into account with the other papers that go before the court at that time.
So there is no attempt to impact on the type of sentences that are passed down.
Not directly. Victim statements will be part of the general papers that go to the court.
I would like to be clear. I thought that the point of having victim statements was that the victim would feel more involved in the process and the judge could consider all the facts before sentencing, including the impact on the victim. If a judge in sentencing is not to make something of an impact statement, does the whole policy not simply fall apart? Surely the policy thrust must be to allow the judge in sentencing to take into consideration the impact on the victim.
I am getting confused. That is certainly the intention. It is clear that I am missing a point that is being made.
We will return to the issue.
I want to return to the issue of workability. I recall a case a few years ago in which Lord McCluskey deferred sentence in order to get a victim statement, but the court of appeal robustly threw out that decision. Did that happen?
I am aware of the case.
So the High Court did not think that that policy was workable.
We must consider further the stage at which a victim statement should be available to the court.
Has that been discussed with the judiciary?
Yes.
What was its input?
It responded to the consultation and raised issues that we are considering. That is one issue.
Would more distress to a victim be caused? Duncan Hamilton properly suggested that a victim statement will have to be tested and could result in the victim having to submit himself or herself to cross-examination. That could cause more genuine pain and grief to the victim.
As my colleague Elizabeth Carmichael said, the policy was drawn up in consultation with victims' groups and a range of key agencies. We intend to pilot the scheme in a fairly limited way to evaluate its impact and effects before a further decision is taken to carry it forward. To some extent, I do not know the answer to your question. It is certainly possible that more distress could be caused.
Another point that struck me is that some people are more articulate than others. Some people might be able to put forward a particularly vivid picture of how an assault or rape affected them. Others who might have been more traumatically affected might not be able to be so articulate about their experience. How does one get around that anomaly?
We propose to have trained advisers to assist people to complete their victim statement if they wish. They can be assisted in putting the words on paper, because it is going to be a written statement and not a verbal one.
Surely the exercise has to be spontaneous. I noticed that you stumbled over the term "words on paper". Is there not a problem with the possibility of putting words into people's mouths?
The pilots for the procedures will help to show clearly where the problems are. We have taken a different route from that of the victim statement scheme in England and Wales, where the police take a victim statement following an evidential statement. One of the difficulties with such a procedure is that the victim statements have read like police evidential statements and have not proved to be particularly helpful.
We will move on from that subject to part 3, but it might be helpful if you could clarify some of the issues we have talked about.
Given that England has recently moved to introduce a formal definition of rape into statute, rather than relying on common law, was that considered for the proposed bill?
In light of the High Court decision on the Abernethy judgment, our opinion at the moment is that that is not necessary.
In some quarters, it has been suggested that part of the reluctance of juries to convict when there is an accusation of rape is because of the absence of a lower category of offence—something that might be described as serious sexual assault. Was that considered when the proposals were being formulated?
It was not considered. There are no grades of rape. It is a particularly serious and horrific crime and there is no intention of having sub-categories.
As there are no other questions and we have dealt with part 4, we will move on to part 5.
I wanted to ask a question on section 22 in part 4, which refers to the creation of a new post of "police custody and security officer". What is the definition of "police, custody and security officer"?
I am sorry. Our colleague who deals with that is not here today. Would it be convenient if we got back to the committee on that question to make sure that you get a proper answer?
It is not my day, is it?
We have a long list of things to do and that is on it.
In formulating the proposals to introduce drugs courts—something I support—are we satisfied that there are sufficient resources in appropriate parts of Scotland to provide the drug treatment and testing that might be ordered by a drugs court?
The areas that are piloting drugs courts are in Glasgow and Fife, where drug treatment and testing order schemes have been established in the courts. We have built on the resources for those schemes and are resourcing the agencies that are involved in delivering the service in treatment and the court process.
I understand that there are no such facilities in the Highlands and that, in the north-east, there is a six-month waiting list for drug treatment. In the context of due legal process, is it considered adequate that people should have to wait for such a lengthy period, or that they should have to move out of their own area?
I will pass that question to Elizabeth Carmichael.
It would be helpful to know whether you are asking about DTTOs or about planning a drugs court.
My question is about DTTOs specifically. I envisage that the introduction of drugs courts will, in turn, lead to people being diverted from custodial disposals to disposals that will place a heavier burden on drug treatment facilities. I welcome that move, but wonder whether the introduction of drugs courts will work if the parallel facilities are not in place. I am trying to establish the extent to which you have considered that issue or planned a response to it.
We have tried to plan for DTTOs, which are the only orders that pay for treatment in addition to the criminal justice matters that they cover. DTTOs are quite expensive, but additional resources are attached to each DTTO to pay for the necessary treatment. We use DTTOs before we set up a drugs court, because they help to build up the resources and treatment facilities in an area.
What do you regard as the maximum appropriate period of time between the DTTO being imposed and the start of treatment?
Reviews take place at monthly intervals. Therefore, the treatment plan should be in place a month after the order has been imposed. My colleague who deals with DTTOs is not here, but I have not heard of problems with delays in getting people into treatment under DTTOs.
Therefore, the criminal justice system is managing to get treatment for people who have serious drug problems within relatively short periods of time, although people outside the criminal justice system experience serious delays.
We have considered that point, too. That is partly why we put in additional resources. We did not want the policy objective of promoting drug treatment for offenders to lead to longer waiting lists for other people. Ministers have put in additional resources to support the criminal justice policy objective. I cannot speak for the health side of the matter, but I know that people will not have to wait longer because of the action that is being taken.
Part 6 deals with non-custodial punishment. I would like to clarify the provisions on non-harassment orders. Do those provisions refer to the Protection from Harassment Act 1997? How do they fit in with non-custodial punishments?
Yes, the provisions relate to the 1997 act. The bill provides for a statutory power of arrest for breaches of non-harassment orders. The consultation on stalking and harassment clearly identified that gap in the legislation.
What does that mean? Why are non-harassment orders included in part 6? Are you creating a new offence, or are you changing the way in which such orders are used?
A non-harassment order—that is, an order to prevent harassment from occurring—can be civil or criminal. The consultation suggested that the effectiveness of such orders was reduced by the absence of an automatic or statutory power of arrest in the circumstances of an order being breached—another offence needs to be committed at the same time as the breach occurs. The bill is intended to increase the effectiveness of the existing non-harassment orders.
Therefore, the bill will amend the 1997 act.
Yes.
On the proposal for an interim anti-social behaviour order, I think anything that speeds up the court process is to be welcomed. One of the disadvantages with the orders is the complexity involved and the length of time that it seems to take to get through the court procedure. However, I am concerned that we might be introducing another hurdle in the process and making the process longer. I hope that it is not the intention that local authorities will have to go through an interim procedure before they get to the full hearing.
It is intended that, the first time that the case comes before the court, the sheriff will be able to impose an interim order, which will stay in force subject to any decision of the substantive hearing. At present, there are delays while the case is rescheduled. The proposal will mean that the decision can be made at an earlier stage, not that there will be an additional hurdle.
I appreciate that but, presumably, an individual would be able to appeal an interim order and that could lengthen the process.
There will be a right of appeal, but the interim order will stay in force pending the outcome of the appeal. The order will be in force and effective from the first hearing, which will help to achieve our policy objective, which is to try to stop the anti-social behaviour or nuisance at the earliest opportunity. Under the proposal, the order will take effect at an earlier time than it does at present.
Has the Scottish Executive considered the creation of a specific offence to deal with stalking and harassment? We contributed to that consultation process and I wondered whether that idea had been considered.
A comprehensive research project is under way into the nature and prevalence of stalking and harassment in Scotland. The research is due to report in September. There is nothing in the bill to deal with stalking as we are awaiting the outcome of the research and consideration of the findings.
Part 7 deals with children and contains a controversial proposal. I have received a letter from the Executive, which says that the policy objective is to refer as many 16 and 17-year-olds as appropriate to the children's hearing system. It is unclear to me so far what is meant by "appropriate" and I have heard varying interpretations of the way in which the provision in the bill would be used. Earlier, Jane Richardson used the phrase "petty offending", but the correspondence that I have had talked about "appropriate offenders". We are not clear about what sort of offenders the pilot scheme would apply to. Could you clarify that?
It is probably my letter that you are talking about. The advisory group on youth crime was concerned that there seemed to be too sharp a division between the children's hearing system and the adult court system. As a result of that, young people aged 16 and 17 were going through the adult court system quickly and were heading towards custody. The advisory group wanted a bridging system that would allow an easier transition.
It helps a bit.
The problem starts at age 16. If the person is under a supervision order, they could still be retained in the children's hearing system. The problem is those who come into the adult system at 16.
That definition is far too wide, which is a problem. I do not know whether it is just me but there seems to be no clarity as to offences or the definition of the term "nuisance value". I am sure that the committee wants to understand what nuisance value cases might be. They might be referred to as nuisance value cases but the public might see them as something else. Are you saying that we should allow a provision in the bill that is wide enough to let procurators fiscal do what they want?
I was trying to explain—and I obviously have not made it clear—that diversion from prosecution stops a group of low-level offences from going to court.
I understand the policy objective. However, the Executive must be clearer about which 16 and 17-year-olds would go into that system. Are you saying that the new system will take as many 16 and 17-year-olds as possible?
No, it will take them only where appropriate. The difficulty is that although the policy can say what group will be targeted for the pilots, the Lord Advocate, as the independent law officer, will issue guidelines to make that happen.
I want to follow on from Pauline McNeill's questions. The terminology that is used is important. The Scottish Executive's policy memorandum refers to
Do you have a question?
I was leading to it. It is important to be clear. Will the tariff system that exists in the adult court system be used to determine broadly which cases should be referred back to a children's hearing? If a sentence of no more than three months' custody is attached to an offence, could that offence be considered by the children's hearing rather than by the court, which could impose a sentence of three years?
We were looking at lower-level summary offences. I checked the figures this morning. Some 58 per cent of all young offenders are given sentences that are under three months. We are considering that group. The Executive is considering the group more broadly, as we are concerned at the high number of short sentences in prisons. The SPS has openly said that it finds it difficult to deal with people on such short sentences. That is not an argument for longer sentences, but more effective work in reducing reoffending might be done in the community not only with young offenders but with people who receive three-month sentences. The concern about young offenders is that their rate of reoffending is much higher. We are grappling with that issue.
Is there any way of putting that in the bill or making it clearer that that is the Executive's intention?
That is a good idea. We will need to take it away and consider it.
I have read the notes and the submissions and I would like further clarification of what is intended by section 43.
The intention behind section 43 is to clarify the law so that parents and courts have a better idea of what constitutes reasonable chastisement.
I have read the submissions by members of the public and a whole host of organisations. I am alarmed by the frequency with which the wooden spoon is deemed a reasonable form of physical chastisement. Would a wooden spoon be regarded as an implement? Will you define what is covered by the word "implement"?
We decided not to define implement in the section so as not to rule anything out. That leaves the court the opportunity to examine what is deemed to be an implement. I suggest that it would regard a wooden spoon as a prohibited implement.
I have three questions. In case I am confused, section 43(3) mentions
Yes, it does.
So it applies to everybody under 16.
That is correct. In any case that involves somebody under 16, those elements would be excluded from the defence of reasonable chastisement.
I have two questions on your policy memorandum. Paragraph 231 says:
The intention behind the research that we have commissioned is to establish a baseline by which we can measure the effect of the bill after it has come into force. A number of fairly well-recognised pieces of research exist on the physical punishment of children and its effects on them. If the committee would like to have copies of some of the available empirical research, I am happy to make those available to you.
That would be useful. We will take you up on that. Am I right in saying that it might have been useful to know the parental attitudes in Scotland on the issue before we kicked the process off?
We consulted in 2000 on the physical punishment of children.
You had 220 responses.
We did, but within those 220 responses were a number of organisations that took account of the views of large numbers of parents. That is not only 220 responses.
I understand that, but we are still talking about a tiny fraction of the population having responded on a potentially divisive issue.
We put the consultation on the web and tried to make it as widely available as possible.
I have a question on one of the alternative approaches that you highlight in the policy memorandum—the no-change option. You state that the problem with no change is that
The bill picks up on a number of things that have developed over the years, beginning with the Scottish Law Commission's report in 1992, which recommended changes to the law on physical punishment. That was followed by a European Court of Human Rights case, although that related to a case south of the border. The United Kingdom Government at that time accepted that the law had not acted sufficiently to protect the individual concerned. What we are setting out in statute on the ban and the aspects that the courts have to consider is based on the A v UK judgment of 1996.
As you outline in the policy memorandum, the common-law position is that
That is the common-law position.
Do you have examples of cases in which that common-law position has proved to be insufficient? Will you provide the committee with such examples so that we can see exactly the kind of case that you are trying to combat?
I can provide the committee with some information about a case that was drawn to our attention some time ago.
I am sure that you are as alarmed as everyone else by how the bill is constantly referred to as the smacking bill. I hope that we can let others see that there is more to it than that. However, as you can imagine, that is the provision on which we have had the most submissions so far. It is one of the most controversial provisions in the bill. I am interested in the practicalities of implementing such a provision. I presume that the starting point would be that it would be a criminal offence to smack a child under the age of three. Is that correct?
That is correct.
Given the fact that Scots law requires two sources of corroboration, how would the provision work in practice? If someone saw a parent smack a child under the age of three at a supermarket and decided to report that, what would happen?
Gordon McNicoll might want to comment on that. Many people have commented on the issue of such situations at supermarkets. However, reports are already made in connection with suspected difficulties with children and parents. It would be for the police to decide whether a situation had occurred that required them to investigate further.
No, I have nothing to add to that.
You are suggesting that, in such circumstances, corroboration would concern whether there were signs of physical assault on the child and the testimony of the witness.
The situation would be no different from the current arrangements. We are not introducing any special arrangements relating to the bill.
Does that mean that someone would have to examine the child at an early stage?
That might be the case, yes. It would depend on the individual circumstances. It is difficult to talk about what might happen in theory.
Has the Executive considered whether it would be possible to get forensic evidence of smacking, as distinguished from evidence of assault against a child with an implement or by a battering?
No. So far, we have not pursued the issue of forensic evidence in relation to smacking children.
Is it not true that most smacking incidents occur in the home?
I suppose that that view could be taken.
How, then, could a case of this type be proved except by having closed-circuit television in every house? The provision seems to be unenforceable and lacking in credibility.
The Executive regards it as no different from any other law that prohibits actions that might take place in the home.
Surely it is. This is a very intrusive provision. The convener is correct to say that it is unfortunate that section 43 has attracted such attention. However, it is controversial because it is regarded by many as intrusive and an unwarranted interference in the way in which people bring up their children.
The Executive believes that the bill strikes the right balance between the desire to protect the most vulnerable members of society from unintentional harm and the desire not to impinge on parents' right to bring up their children as they see fit.
If the harm was unintentional, there would be no mens rea and therefore no crime.
That is true. However, the intention behind section 43 is to clarify the law so that people are in no doubt that, in certain instances, it is against the law to chastise their children physically.
As has been said, surely the common law of assault applies. If someone took an implement to their child, that would normally be assault. If someone smacked a child long and hard and unnecessarily, that would also be assault. The courts have upheld that view in recent cases. Why is legislation needed?
As I have explained, when drafting the bill, we looked back at the development of views on physical chastisement in the past few years. The A v UK judgment on the factors that must be taken into consideration suggested to the Executive that there might not be a standard approach to such cases throughout Scotland. We will put it beyond doubt that using implements, shaking and blows to the head will be illegal acts. Ministers have said that there is an age below which children should not be hit.
I remind members that some questions are for ministers. Officials can answer only to an extent.
I will return to the current law. I am not certain of any appeal court judgments on appeals by the Crown against the acquittal of a person who has been accused of assaulting a child through unreasonable physical chastisement. Do any such judgments exist?
I am not aware of any such judgments.
Why was the age of three decided on? The provisions are neither fish nor fowl: they do not impose a complete ban, but they do not leave the law as it is. Surely that is a poor compromise.
Ministers took the view that they wished to protect the most vulnerable children and that there was an age below which smacking should not take place. It is reasonable to argue that, up to the age of three, children are developing mentally and physically and that most harm might be done up to that time. Research suggests that, up to the age of three, a child might not understand the intention behind physical punishment and that, before the age of four, a toddler's ability to understand notions of right and wrong is limited. That evidence is listed in the material that I can give the committee today.
The answers to Mr Aitken's questions brought some issues to mind. A v UK sets out four aspects that the court must take into account: the nature and context of the punishment; the duration and frequency; the physical and mental effects on the child; and the personal characteristics of the child, including sex, age and state of health. Which of the three acts that the bill specifies would not be covered by those factors? I presume that a blow to the head, shaking and the use of implements would all be covered, in addition to the common-law position.
Ministers have taken the view that it is right to set out, so that it is completely beyond doubt, what courts must take into account when considering such cases. I can add nothing to that position.
That is the position that ministers have taken, but—
That is the position. That is what the bill sets out.
I understand that. My question relates to the need for the bill. I suggest that each of the aspects that we seek to enshrine in the bill is covered by the factors from the case that you quoted, let alone the common-law position. What has been added?
The purpose of listing the factors is to put it beyond doubt that they must be considered by the court.
Which factor is in doubt? If we take into account the A v UK case that you mentioned, which factor is not covered?
Listing the factors puts it beyond doubt that each of them must be considered. There will be no doubt that in all cases the sheriff will have regard to all the factors.
Who is in doubt? I do not see the element of doubt that the bill tries to remove. Which of the factors is in doubt and who is in doubt?
With respect, it is not for me to speculate about who is in doubt. The intention of ministers is to make it clear that courts will consider the factors in all cases that involve the physical punishment of a child. The matter will not be in doubt, because the factors will be set out clearly in legislation.
Do you have evidence that the courts do not take those factors into account or that the law does not work?
As has been explained, the purpose of the provision is to clarify the law. It might be that in 99.9 per cent of cases—perhaps even in 100 per cent of them—the court considers all the factors, but the view of ministers is that, to put the matter beyond doubt, the bill should specify that the factors must be taken into account.
Did you say that it is possible that in 100 per cent of cases there is no doubt whatsoever? It might well be that the bill deals with a situation that does not arise.
The bill is intended to make it clear beyond doubt that courts must consider all the factors.
I must stop you there, Duncan. Some of those questions are clearly for the minister. I promise that you will get the opportunity to ask them again when we hear from the minister.
I have a question on that point, convener.
I will come to you. Stewart Stevenson is first.
The minister helpfully responded to the suggestion that I made in the committee last year that a survey should be conducted on the incidence of physical punishment on children. Given this morning's discussion on the lack of clarity in the public's mind about the present law, the need to clarify the law and Mr McNicoll's reasonable reluctance to speculate about who is in doubt, is it the intention to do any research or survey work to establish how far the public is in doubt? That fact seems to underpin the justification for proceeding with section 43 as it is cast.
I believe that the research that we have commissioned will be available in the late summer. A range of questions are being asked of people who have young children. We are considering those issues and examining the incidence of the use of physical punishment and people's attitudes to it. We are also examining people's knowledge of the present system and of the proposed changes.
Does that address my point about testing people's understanding of the present legal requirements?
Yes.
Will the introduction of an age limit in section 43(3)(a)—whatever it might end up being—increase the risk of chastisement for those above the age limit? How do you plan to monitor and test that?
Ministers have made it clear that, aside from the legislative vehicle of section 43, the Executive supports organisations that promote positive parenting strategies and alternatives to physical punishment. It has been suggested that if no smacking is allowed up to a certain age, parents will start to smack their children after that age. We hope that parents will always think twice before they smack their children.
It has just occurred to me that I should ask this question. To your knowledge, will the results of the research be available prior to the closing date for the submission of amendments at stage 2 by MSPs?
Yes. I anticipate that the final results should be available by August, which means that we will see the evidence before we move into stage 2.
I want to follow on from Duncan Hamilton's comments. For the sake of clarification, are you going to present us with evidence of court cases where prosecutions have failed due to a lack of clarity in the law?
I have information about a particular case where—
Just one?
At the moment, yes. Between now and when we write to the committee we will perform some investigations.
That deals with part 7 of the bill. Part 8 deals with evidential, jurisdictional and procedural matters. Are there any comments or questions from committee members on that part? If there are none, part 9 deals with bribery and corruption.
Will the responsibility that is outlined in section 55 extend to actions that are undertaken by foreign nationals employed by a Scottish-domiciled person, partnership or company?
If the actions are taken on behalf of a UK company, the legislation will apply.
That means that quite an onerous burden may be placed on companies operating from Scotland or the UK.
Yes. The terms of the international agreements that the UK has signed up to are clear that domestic legislation needs to be clarified in this way.
Is it envisaged that the preferred way forward in such cases would be for the foreign national to be dealt with under their own jurisdiction?
In this legislation we are taking steps to ensure that they could be dealt with under Scottish jurisdiction. Individual cases may fall to be decided on the circumstances of the case itself.
But the bill does not seek to extend the remit of Scottish law to cover the foreign nationals.
No, not as far as I am aware, but if that is not correct I will write to you.
Part 10 deals with criminal records. There are no questions on that part. Part 11 deals with local authority functions. There are no questions. Part 12 deals with miscellaneous and general provisions. I have a question on public defence. I am aware that some research has been carried out on that subject but, to my knowledge, there has been no parliamentary discussion of the principles of the Public Defence Solicitors Office. Could you shed light on why the provisions in part 12 are being brought forward, given that an independent evaluation is being carried out?
My colleague who deals with the PDSO is not with us today because, as I said, we were trying to keep the numbers down. My understanding is that the proposal in the bill is a fairly minor one, and is intended to enable the experiment to run beyond the time set out in the sunset clause in the primary legislation. I also understand that further research will be undertaken into the operation of the PDSO scheme. We can provide you with further clarification.
That would be helpful. Do you know why there is a need for further research? Is it because the first results were not liked?
I think that it is required to continue to prove the exercise, but I will clarify that point for you.
Professor Christopher Gane is here, but he cannot directly ask questions. Professor Gane, is there anything that you think the committee needs to ask?
No. I think that we have covered the issues fully.
We will take one more question before we let the witnesses go.
Section 61 refers to civilian police custody and security officers. Is it intended that they will be granted the status of prisoner custody officers, or is there another formal way by which civilian police custody and security officers will be licensed and regulated?
My understanding of the arrangements in section 61 is that they enable the setting up of this new type of officer under the control of chief constables.
Is it intended that there will be a central register at a Scottish level, as there is for prisoner custody officers?
I imagine that once the procedure is set up, that will be examined.
Some further clarity on that would be helpful to the committee.
We will come back to that topic. That is the end of our questions for today. I thank all the witnesses. I know that it must have felt like a grilling, but we try to do our job as a committee. This is an important bill, and we want to draw out all the details so that we are not just concentrating on one or two controversial areas. We are grateful for the evidence that you have provided this morning. You are going to get back to us on a number of issues. I do not know if you need a summary of those.
Meeting suspended.
On resuming—