I welcome Shona Barrie, who is head of the victims, witnesses and vulnerable accused team in the policy office of the Crown Office. She will make a short opening statement.
I want to provide some context to clarify an issue that arose at the committee's previous meeting when the Minister for Health and Community Care was present. There was some confusion about whether the Crown Office made a submission. As I understand it, we received no formal invitation to do so. Obviously, as an Executive department, we were invited by the minister to offer our views, so the memorandum that the minister submitted incorporated the views of the Crown Office.
There were crossed wires. We are required to ask for a response specifically from the Crown Office.
It would seem so.
Thank you.
I beg your pardon. My mind was elsewhere.
We have no time to halt. You need to be on the ball because 10 minutes is all that you will get.
The Scottish Executive's written submission states that the Crown Office and Procurator Fiscal Service and the Association of Chief Police Officers in Scotland raised issues about the enforcement of the bill's provisions. In particular, the submission notes problems with definitions of "public place" and "prevent". What is the Crown Office's position on the standard of the definitions that Mike Dailly has supplied?
I, too, have only just now seen Mike Dailly's helpful supplementary paper. The paper addresses the definition of "public place" by using a definition that is already recognised in knife legislation. That is all good and well.
I hesitated before asking my question because I was hurriedly trying to read Mike Dailly's letter, too. In fact, it goes on to clarify some of those points. We have heard it from the Crown Office but we have also heard it from Mike Dailly.
Obviously, Elaine Smith will have an opportunity to respond on the matter later.
What concerns does the Crown Office have in relation to the identification of the accused in the bill? What problems might arise in relation to enforcing the bill?
I think that the problems are likely to be less acute in commercial premises, particularly in relation to a member of staff who has done whatever act is required to constitute stopping or preventing someone from breastfeeding. However, someone in a public park, on a bus or in some other public place is unlikely to hang around and wait for the police once they have said whatever they want to say to the carer of the child. The offence might have been committed and offence might have been caused, but there will be no enforcement procedure to follow.
Could you expand on your view about the current provisions for harassment, breach of the peace and assault? Would they be sufficient or would there need to be a statutory offence?
There would be circumstances in which it could be said that a breach of the peace had been committed. To an extent, I concur with the view of ACPOS that whether something is a breach of the peace has to be decided separately in each case. The test for breach of the peace, which relates to whether alarm and distress have been caused, is well known. On assault, cases in which there was physical intervention would tend to stand out.
There would have to be a serial preventer of breastfeeding at large.
Yes. The provision might be some sort of inhibitor for those who run commercial premises, but the test has a high threshold.
I have a question about the word "prevent". If someone physically prevents someone from breastfeeding, the situation is quite clear—the common law relating to assault would deal with that. However, what if a proprietor said to someone, "Hey, you can't do that in here." In doing so, they would be putting pressure on the person and I would imagine that the word "prevent" would apply in that circumstance. That is a situation in which the bill would cover something that other legislation does not.
Yes. There is a lacuna. The common-law offence of assault requires a different actus reus from the scenario that you have depicted. I am not clear about what the situation would be if the proprietor said, "We have a private facility for breastfeeding, would you please move through there?" I do not know whether that would constitute "preventing or stopping" or would fall within the present offence provision. If the policy intent is to prevent such a situation, that issue needs to be examined further.
What is the position of the Crown Office with regard to the corroboration of witnesses' evidence? Does the bill make suitable provision for which witnesses' evidence is required to be corroborated and exactly how that should be carried out? Presumably, the Crown Office will have to issue a definition in that regard, if the bill is passed.
Once the offence had been committed, there would have to be two sources of evidence pointing to the fact that there had been an intervention and that the accused was the perpetrator. Those are standards at common law and it is perfectly natural and absolutely standard for offence provisions not to reiterate those requirements. I am comfortable with that. Procurators fiscal are certainly well versed in those requirements. If the offence provision reaches the statute books, the Crown Office might well seek to provide guidance about prosecution policy to prosecutors. However, we are all quite comfortable with the requirements for corroboration.
In other words, the requirement is standard in common law.
You said that you were not sure about the situation in which a proprietor made the person who was breastfeeding aware that they had a private facility. Surely that would depend on several things. For example, if the person said that they were happy to feed where they were and the proprietor then said, "I am telling you that you have to move," at that point—
The provisions would kick in.
Yes. So I suppose that a bit of common sense would have to be applied in that situation. As Mike Dailly's letter says,
I think so.
We will stop right there, then.
Okay—"reasonable" is good.
Nobody made that clear to me.
As a representative of the Crown Office, do you have a view about whether the bill could be amended at stage 2 to address the Crown Office's concerns so that the Executive can support the bill?
On the part of the Crown Office, I would align myself with the aims of the bill and say that they would be supported. The Crown Office is an Executive department and, if we foresee any difficulties with enforceability, we have the responsibility to raise them. I do not know that it is within my gift to give you all the answers that you are looking for.
I thought that you were going to be indiscreet for a moment. We were all waiting for it.
I do not want to press you, but do you think that it is practically possible to amend the bill at stage 2 to address the Crown Office's concerns?
Those would be matters for the office of the solicitor to the Scottish Executive and the drafters, who have more expertise than I do. I can speak only from the prosecution point of view, if you like, about the obstacles that we could identify and that we would like to be overcome to assist us in implementing a piece of legislation.
Have you found the letter from Mike Dailly helpful? Has it clarified issues for the Crown Office?
It is useful in that it sets out the underpinning principles of law.
Has it satisfied the concerns about enforcement raised in paragraph 8 of the Scottish Executive's memorandum to the committee? Have you seen that?
Yes. There are probably several aspects that need clarity.
The definition of "prevent" would be one, for example.
Yes, there needs to be clarity on the definition of "prevent or stop".
I am trying to clear up the outstanding issues. The definition of "prevent" is one, although we have cited Mike Dailly's letter.
We seek clarity that the offence provision requires an objective assessment of the accused's actions, rather than a reaction in the carer. The same set of circumstances could provoke different reactions in different people. It is likely that the offence provision would quickly become the subject of an appeal court comment. We need to disentangle the element of subjective reaction.
That is extremely useful. One person might react well or quietly to an invitation to go to a private place to feed a child, whereas someone else might react badly. That is an interesting point for us to consider.
As I am a slow reader, I have just got to the second page of Mike Dailly's letter, which contains comments about harassment. Is the Crown Office happy about the interpretation of harassment? For the sake of argument, let us assume that a couple of customers in a shop start tutting. Is part of the issue the reaction of the person with the child? Is the bill clear on harassment? Is harassment definable and not just a matter of the opinion of the person who alleges that they have been harassed?
For clarification, is it correct that harassment is a statutory, rather than a common-law, offence?
It is a difficult notion. English law has a statutory offence of harassment; in Scotland, if there are multiple charges of breach of the peace, a non-harassment order can be attached. However, for the purposes of court recording, the crime is recorded as, "Breach of the peace (harassment)." One important distinction between practice in Scotland and practice down south is that there is no statutory offence of harassment in Scotland.
What is your view, as a Crown Office representative, of the apparent ambiguity in the bill?
It would create a difficult evidence area.
The matter depends very much on individual interpretation.
Yes. One carer might feel inhibited by pressure from members of the public who are tutting, throwing disparaging glances or making comments, whereas that might not inhibit another carer. The matter will turn on individual facts and circumstances, therefore it is about the subjective reaction of the carer.
Should there be a duty on the person who complains about harassment to prove conclusively to the police and, if necessary, the procurator fiscal that something has happened?
Our public prosecution system is such that it would not be for the person who made the complaint to prove anything; it would be for the police to gather evidence. The underpinning concern that ACPOS and the Crown Office fed into the exercise was that there could be difficulties with gathering evidence. People do not remain in shop premises and may have departed, which means that there could be difficulty with identifying the accused and finding witnesses to support the carer's account.
I asked the Minister for Health and Community Care how many people he thought would be prosecuted for the offence in the bill. After a while, he came to the conclusion that nobody would be prosecuted. Is that the Crown Office's view?
Our view is that we would expect to receive very few reports.
How many is very few?
That would be entering the realm of speculation. I do not know, but I suppose that to a large extent the matter would be down to the publicity that was associated with the legislation.
I asked the question because of the worries that have been expressed about the interpretation of "prevent", whether cases would go to the appeal court and all that stuff. If no prosecutions are going to take place, however, surely those points of law are academic?
As the police have said, they have an obligation to investigate cases. If there is sufficient evidence, their obligation is to report that to procurators fiscal across the country. Unfortunately, we have no means of gauging what the uptake might be.
You said that the Crown Office would pursue a case only if there was a range of evidence. If there is such an accumulation of evidence, what is the concern about "prevent"? You seem to be saying that the bill, as it is drafted, is not specific enough.
It is simply that we have a responsibility to ensure that, if law is to be put on the statute book, it is as good as it can be.
Absolutely.
Last week we heard evidence from—if my memory serves me right—Dr Pat Hoddinott. Reference was made to the international scene and I recollect that Australia was mentioned as one of the countries in which the right to breastfeed in public has been established; I cannot remember the other country that was mentioned. Has any research been undertaken on the number of prosecutions that have taken place in those countries? If not, will the Crown Office and Procurator Fiscal Service make some inquiries to see how many prosecutions have taken place?
Research has certainly not been done on the part of the Crown Office and Procurator Fiscal Service. However, it might be something that the sponsoring department or the Health Department could look into.
We can ask the Executive about that.
Thank you, convener. I waited until I had heard the questions that the committee wanted to ask. I have a small question for Shona Barrie. Given that we are talking about the number of prosecutions—whether there would be any or whether there would be few—do you think that the bill will have a deterrent effect?
I am probably about to step a little outwith my bailiwick. Once more, if we assume that appropriate publicity would be given to the issue, the bill could have an impact on the attitudes and actions of those who operate commercial premises. I really do not know.
Thank you.
I thank Elaine Smith and Mike Dailly for coming to the meeting at short notice. We will have a brief session in which members can ask questions of Elaine Smith and Mike Dailly in the light of what has been said by the Crown Office and to tidy up on any points that arise from the letter that the committee received.
In light of the various points that have been made, particularly in relation to the definition of "prevent", are there issues that you want to highlight and on which you might come back to us?
I am glad that the Crown Office was able to give evidence today and that you have asked us to give evidence again. It is important to ensure that a bill covers everything and that it is drafted properly. The bill uses the term "deliberately to prevent". Mike Dailly will go into more detail on the definition.
The Crown Office evidence that was given today has been helpful. One key problem—the definition of "prevent or stop"—seems to remain. I understand that the courts interpret the word "deliberately" on an objective basis, as they would interpret the words "wilful" or "reckless".
As I understand it, the point that was being made was that whether an offer to direct a feeding mother, a person or a carer to another area was seen as offensive or inoffensive would depend on evidence of the manner in which the offer was made.
Yes.
What amendment would you suggest at stage 2 to address that concern?
My primary position is that it is my understanding, as a solicitor, that "deliberately" would be interpreted on an objective basis. If the Crown Office wanted that put beyond doubt, it would not be difficult to produce an amendment that would spell out that "deliberately" in section 1(1) would be looked at objectively.
As the convener said, who could object to an inoffensive offer of facilities elsewhere? However, one person's inoffensive offer can be interpreted by somebody else—the recipient—as an offensive offer. Is that not the key to the issue? I am not sure that you provide the answer by saying that the test is objective. How do you form that test?
The test has to be objective because there has to be uniformity. As we discussed at the meeting last week, it is necessary to ensure that there is a sufficient degree of intent. Someone must be trying to stop the person from breastfeeding. It is not that they are curious and are staring at the person, or that they are making a noise; they must be going beyond that and doing something that, I guess, would be getting on for being quite abusive.
I found that helpful.
Meeting closed at 17:08.