Item 3 is a discussion at stage 1 of the Criminal Justice (Scotland) Bill. I welcome the Minister for Justice, Jim Wallace.
And a range of officials.
Welcome to you all. I apologise for keeping you waiting. As the minister will know, the bill contains a lot of technical issues. Although we volunteered to be the lead committee on the bill, we did not have any idea of the number of provisions that it contained. As the Executive has kept adding to them, the task has become onerous. I thank the minister for the large memorandum that was sent to the committee in advance of the meeting. It has helped to clarify several issues that have been raised in evidence and I am sure that it will save time. I refer members to paper J2/02/24/2, which sets out some explanatory material. I hope that our lines of questioning can be narrowed down to points of further clarification and further issues that need to be raised.
Good morning. Part 1 of the bill relates to the protection of the public at large. The committee is in some doubt not about the Executive's intentions, but about the efficacy of the provisions. At present, someone who is sentenced to a lengthy period in prison or life imprisonment for the type of offence that it is envisaged will be dealt with under part 1 would have their sentence reduced on licence following appropriate consideration by the Parole Board for Scotland. Quite onerous restrictions could be placed on the individual if he or she were to be liberated. I am a little puzzled about how the provisions in part 1 would change the current situation, apart from the fact that the risk management authority would be involved.
Part 1 seeks to put in statutory form, where that has been necessary, the recommendations of the MacLean committee's expert report on serious violent and sexual offenders, which the Executive substantially accepted and which Parliament has endorsed. We are dealing with the product of considerable investigation by what is widely accepted to have been a useful and hard-working committee.
The argument could be advanced that an alternative would be to establish the risk management authority administratively and to have it work in conjunction with the Parole Board more or less along the lines on which the board's officials work at present.
I assure the committee that careful consideration was given to the nature of the risk management authority. The work that is involved and the required interaction with criminal justice agencies could not be undertaken by the private sector. The body is very much considered to be part of the public sector.
The Executive's memorandum of 13 June says that only High Court cases would trigger a risk assessment order. We have seen and heard evidence of concern about the range of offences that could trigger an order. Are you satisfied that a risk assessment order could not be triggered by a fairly minor conviction, albeit one that was dealt with in the High Court?
Yes. I am satisfied that an order for lifelong restriction would be unlikely to be issued for someone who had committed a trivial offence, albeit one that was handled in the High Court. It is unlikely that a trivial offence would be heard in the High Court, unless a person had been charged with more serious offences that fell away one by one, leaving only a breach of the peace.
Last week, the committee heard interesting evidence from Professor David Cooke, who said that he would find it difficult to apply the risk criteria that are set out in proposed new section 210E of the Criminal Procedure (Scotland) Act 1995. The word "likelihood" is used in that section. What is meant by that word? To what category of offender is the section directed? Is it intended to deal with individuals with personality disorders, for example?
As I read it, the section almost speaks for itself. It says that the criterion is that
I do not seek to be pedantic.
I know that.
I do not want to enter into an argument about semantics. In general conversation, the word "likelihood" is reasonably clear.
That is what I thought.
However, we are discussing not general conversation, but the law. In different circumstances, Professor Cooke might be required to determine the possibility of someone committing further offences. Are you quite satisfied that the procedures are in place to define the appropriate criteria?
Let us remember that the recommendation is that, before an order of lifelong restriction can be imposed, there must be a formal risk assessment, which must be carried out not only by reference to criteria but in accordance with statutory procedures. I believe that the criteria are based on determining whether the offender represents a substantial or continuing risk to the public. The assessment report could identify a number of reasons why that likelihood exists. I do not wish to pin one specific ground to the word "likelihood". There might be a range of reasons why, having weighed all the evidence against the criteria, it is decided that there is a likelihood that a person could pose a danger if released.
There is likelihood and there is certainty and there is everything in-between. I think that we would agree on that.
You will find very few scientists who are prepared to say that something is ever a certainty.
There may be a likelihood that a certain horse will win the 2.30 at Kempton, but are you prepared to put this month's salary on it?
Likelihood is not certainty, and there is always the possibility—which falls short of certainty—that a person would not endanger people's lives, which we should all be relieved about. Of course, the definition excludes the trivial whim—the possibility that the person in question just might, on a bad day, endanger people's lives. Likelihood is quite a high requirement to meet. Obviously it falls short of certainty, but we should remember that the underlying concern that we seek to address is the safety of the public. If the information that is available on an individual has been assessed and it has been decided that, if that person were to go out into the community without any restriction or management, there is a likelihood—it is more probable than not—that they would endanger the lives, or physical or psychological well-being, of members of the public, I believe that there is justification for society to give our courts power to make appropriate orders, subject to all the protections that exist for the accused person.
The committee has heard evidence from many witnesses, notably from the Scottish Human Rights Centre, who have raised concerns about civil rights issues and about how civil rights are weighed against the protection of the general public. Proposed new section 210F refers specifically to the test of evidence when imposing the order for lifelong restriction, and proposes using the balance of probabilities. It has been suggested to the committee that the higher test of evidence—beyond reasonable doubt—should be used. Has any consideration been given to that?
I can certainly assure the committee on that point. Any committee members who know my personal commitment to human rights issues will know that I have given considerable attention to those matters. Having signed the certificate of competence on introduction of the bill, I am obviously satisfied, on the basis of the advice received, that the bill's proposals honour our European convention on human rights obligations. It is important to recall that an important part of the procedures allows the person who has been convicted to challenge and appeal against a sentence, so safeguards are built in for the accused person.
I want to move from the theoretical to the practical application of the term "likelihood". I have an example in mind. For reasons of privacy, I shall construct an artificial example that is based on real examples. I suspect that other members may have similar examples.
I think not. The reason is nothing to do with the risk criteria or references to the word "likelihood", but is explained in subsection 1 of proposed new section 210B, proposed by section 1. It says:
If that person committed assaults, which would bring the offences within the scope of the term "violent", would that change the circumstances?
We are talking about serious violent cases.
I am not questioning your intent, which I think is quite clear and which the committee understands. I am merely questioning the expression of that intent in the bill.
I certainly think that the court would have to be satisfied that the nature of the assault was such that it amounted to violence. There are many assaults that one would not readily label as serious violence or as assaults that endanger life. Many assaults come nowhere near endangering life.
One of the most important basic principles of Scots law is the presumption of innocence. To some extent, the proposals go away from that. I am well aware—the Executive memorandum deals with the issue—that the offender has the opportunity to challenge the risk management plan. However, a number of witnesses have expressed concerns that the use of unproven allegations in the risk assessment process is not satisfactory. Will you comment on that? Will you also comment on whether there is a possibility that the proposals may breach article 6 of the European convention on human rights?
Ultimately that would be a matter for the courts to determine, but it is my firm belief that they do not do so. Otherwise, I would not have signed the certificate of competence before I presented the bill to Parliament. Therefore, by definition, I do not believe that the proposals breach the convention but, as in all such cases, that is determined by the courts, not by ministers.
I accept that tittle-tattle and apocryphal stories would not form the basis of any decision. Nevertheless, we are departing from the important principle that the facts should be proven beyond reasonable doubt. That is not happening in the risk assessments, is it?
The information is not relevant to establishing the person's guilt. Guilt, established beyond reasonable doubt, precedes the compilation of the report. As I have said, the person will have a right to challenge the information in the report. If a challenge was made and those who compiled the report insisted on its inclusion, there would have to be a proof to decide whether the information in the report had been established. The information does not establish the person's guilt.
Will the decision be based on balance of probability?
Yes, because we are not determining guilt.
When the decision is being made on whether to apply an order for lifelong restriction, we are balancing the risk to the public with the person's rights. There is a worry that we are encroaching on the territory of non-conviction information being used to restrict persons. You are putting the case that justifies doing that and, under part 5 of the Police (Scotland) Act 1967, such non-conviction information can be used when the view is taken that it is necessary to do so for the protection of children. Although the case can be made, we would not want the use of information that has not been proven in a court of law to go much further than it has already, because we are setting a trend. For at least the second time in Scots law, information that has not been proven in a court of law can be used to restrict a person's movement. We must proceed with caution.
This is not something that one does lightly—far from it. I give the committee every assurance that the proposals did not appear in the bill without serious consideration being given to the points that have been made. It is proper that the committee and the Parliament examine closely specific proposals such as this. Important issues of public safety are involved. We are not talking about trivial matters of public safety, but about danger to life or physical danger. I believe that we have struck the proper balance.
Bill Aitken asked you to clarify what is meant in section 210E by offenders who are "indifferent". Is that provision directed at offenders with personality orders? If not, at whom is it directed?
Can you repeat that? I want to be perfectly clear about the question that I am trying to answer
Whom is the provision aimed at? Is it aimed at offenders with personality disorders or at another type of offender?
It could include people with personality disorders if there was a propensity, because of the personality disorder, for the person to be totally indifferent to the consequences of behaviour that could threaten the public. That need not necessarily be the result of a personality disorder. I do not pretend to be a psychologist, but I do not think that such indifference, or the section, is necessarily linked to a specific medical condition. If a medical condition emerged in the assessment, not only would the order for lifelong restriction be available, but other orders such as interim hospital orders would be available. It is not intended that the provision should be triggered by a specific medical condition.
When the bill was drafted, what was in the mind of the draftsman? Why is that section in the bill? Is it a catch-all provision?
In one respect, it is a reflection of the MacLean committee's concerns. It also reflects circumstances in which the information that is obtained from an assessment shows that a person seems to be totally blasé and not particularly concerned about the consequences of actions that could pose a danger to the public.
A view has been put to the committee about the role of the Crown in asking for such orders in the High Court. The issue is not big, but I thought that I should get your opinion. There is a slight departure, because the Crown is getting more involved in sentencing. Have you considered that view?
Yes. It was considered by justice ministers and the Crown Office. When the Crown Office is preparing a case, it will receive a considerable amount of information, including information on prior offending. As a result, the prosecutor is well placed to assess prima facie whether an offender might meet the statutory criteria for an order for lifelong restriction.
In giving evidence to the committee, the chair of the Parole Board for Scotland, Dr McManus, suggested that although the risk management authority has not been given the powers to do so, it could play a role in ensuring that resources were available to support people who were subject to lifelong restriction orders. In particular, the risk management authority might take on the role of an honest broker in ensuring the transfer of resources from one local authority to another. Will you comment on that?
I do not think that the authority is intended to be a body that would determine the transfer of resources from one local authority to another. However, as the authority will oversee the operation of the risk management plans, the description of it as an honest broker is not inapt.
I put it to Dr McManus—who is chair of the Parole Board for Scotland and not of the risk management authority—that the presence or absence of such arrangements might influence the assessment of risk. Do you agree?
The belief that underpins that section of the bill is that the risk management authority and the relevant orders are intended to improve public safety. To set up the authority and then have it effectively sterilised would, by definition, mean that the authority would not be as good for public safety as it would if it were functioning properly.
We now move to the subject of victims' rights.
We have heard quite a lot of conflicting evidence about the bill's provisions on victims' rights. Victim Support Scotland seems to be unsure whether it fully supports the bill as it stands. Concerns have been expressed about the intent and purpose of the measures, the impact on the court process, and the process of drawing up a victim statement. The key issue is whether the provisions will make a difference to the victim.
Mr Lyon said that the committee had heard conflicting views from the chief executive of Victim Support Scotland, but he said in his evidence:
The Executive's memorandum says that it intends to pilot victim statements in three courts initially. Unlike section 44 of the bill, section 14 does not establish a pilot scheme but provides a general statutory foundation for the making of victim statements and their introduction into the court proceedings. Why does that approach differ from the approach that is adopted in section 44? Can you clarify the Executive's intention?
There is no magic or science about it. As section 44, which we might well reach later, obviously involves the role of the Lord Advocate in prosecutions, it was almost a case of putting our toe into the water to test it. However, with victim statements, we took the same view as we took with the restriction of liberty orders and felt that there was considerable consensus about what we were doing. Certainly the response to the consultation showed that.
How long will the pilot schemes run? Will they be evaluated before the measure is implemented?
We expect the schemes to run for two years, after which there will be proper evaluation. The Subordinate Legislation Committee suggested that some of the bill's provisions should be subject to the affirmative rather than the negative procedure. We are more than willing to consider that suggestion.
It is intended that victim statements will not only be of therapeutic value to the victim but will have an impact on sentencing when they are presented to the court. Is it proper to experiment with the accused in such a way, especially given the concerns that have been raised about the practical operation of section 14?
I do not think that we are experimenting with people.
When victim statements are used in certain areas of the country, they will have an effect on sentencing and on the type of sentence that is handed down. Is it right that an accused in one part of the country will be treated differently from an accused in another area?
I think that it is. No one disputes that the system is innovative. As a result, it is important that we gain some experience with it. Certain issues will arise from the pilots, so we will be able to do things better when the scheme itself is rolled out. I acknowledge your point of view, but we would be criticised more if we took a big bang approach and rolled out the scheme across the whole country. People would readily call that a bold step, because we will undoubtedly learn lessons from how the measure is implemented. At the moment, the amount of information on sentencing that is available to sheriffs varies from one court to another, because of particular fiscals or the varying quality of inquiry reports.
We agree with many of your comments on the general principle that victims should have a bigger role and that they should have more satisfaction from the judicial process. However, written submissions from the Law Society of Scotland and the Faculty of Advocates and oral evidence from the Crown Agent designate have raised genuine concerns about the process and the information that will be presented to the court in the victim statement. On 5 June, the Crown Agent designate told the committee:
The intention is to have a pro forma statement that asks specific questions about the physical, emotional and financial impact of the crime. Obviously, we will also issue guidance to help people complete the statement. Victims will be able to choose whether they make their own statement or whether they want help from trained individuals. Indeed, social work or Victim Support Scotland might even be able to lend support in individual cases. The use of pro forma statements should substantially address some concerns. We will not simply give a sheet of blank paper and a pen to a victim and ask them to write; there will be some indication of which areas are relevant. However, I would not want the pro forma to stop anyone from saying something that they felt they had to say.
Will we able to prevent a victim from including information that is clearly not relevant to the charge or that could relate to other charges that have been dropped or not brought to court? Will the contents of the victim statement go forward to the court unadulterated? That is the key concern that has been raised.
I am aware of that concern. However, courts are faced almost daily with information that is entirely irrelevant either to the proof of the charge or to any points that should be taken into consideration. Our judges are pretty skilled in sifting information and in knowing what is or is not relevant; that is part of their training. I would rather leave the matter to judges and their years of experience than interpose some third party that would take it upon itself to determine what was relevant. Such a step would undermine much of what we are trying to achieve with victims. Anyway, I am not quite sure who would take up such a role, because it would be inappropriate for the police or the prosecutor to do so. As I have said, having to disregard irrelevant information is not a novelty for our courts.
I appreciate that the courts are good at sifting out irrelevant material. However, given that victim statements will be produced on a pro forma basis and be made available to the court, how can we ensure that victims do not disclose information that might be inappropriate for a semi-public arena? After all, the statement will also be available to the defence, which means that victims could be doubly exposing themselves. Not only would they have to give evidence, but they might have to detail the crime's impact on them. Although it might be cathartic to put down such information on paper, it might not be in a victim's long-term best interests to put that information into such a public arena. How do we mitigate such a situation without a sifting process?
There are a number of responses to that question. There is no obligation on a victim to make a statement. It is important that, in the guidance that will be given to victims when they are given the option of making a statement, they are advised that the statement will go to the accused and that the information contained in it could come up in court. It is important that victims know that. Some of the concerns that Scott Barrie raises will be mitigated by the fact that the statement will not be routinely provided to the accused or to the court until there is a finding of guilt or a guilty plea. That provides some sort of safeguard.
Could I clarify my question?
Yes, please.
I presume that people will produce a victim statement prior to the trial. The accused may be found guilty of parts of the original indictment or may plead guilty to certain parts of it. Some of the victim statement may relate to those parts of the charge on which there has been no finding of guilt. How can we ensure that the victim statement is relevant?
I am with you now.
As a matter of clarification, if the victim in a rape case makes a statement at the beginning of the process but the accused pleads guilty, what protection will exist to prevent the victim statement from being placed before the court and challenged? In those circumstances, as Scottish Women's Aid and Victim Support Scotland suggested, the victim might end up being challenged in court on their victim statement. Will there be a mechanism to prevent the statement from going before the court if the victim so chooses? It is clear that victim statements can be challenged.
If material points in the victim statement are disputed, those points will be open to challenge. That is an important safeguard—the victim cannot just say anything. Although similar opportunities for challenge exist in England, the information that we received from the Home Office is that, in the English experience, such challenges have never arisen.
May I therefore assume that such a situation could not arise, or would it be a matter for the judge's discretion? That is what we are trying to establish.
A proof could take place only if there were a dispute over material facts. It is difficult to envisage how, if a person has admitted their guilt, there could then be a dispute over material facts, particularly if the victim statement sets out a narrative of the offence in respect of which the accused has just been found guilty. A further important point is that there is also an obligation on counsel and solicitors not to abuse the process.
You referred to the system in England and Wales, where there is no evidence of challenges being made to victim statements. I want to clarify the matter for the committee, because we have not received much detail on how the system in England and Wales operates. From our previous discussions, we understand that a victim statement in that system is made to a police officer and that the statement is then presented to the court through the normal channels—that is, it goes through the procurator fiscal in England and Wales.
There is no procurator fiscal.
You will have to forgive my ignorance of the criminal justice system in England and Wales—I meant the Crown Prosecution Service. Perhaps you could explain how the system in England and Wales operates. Is it identical to the sort of system that you want to introduce in Scotland? Your answer will have an impact on the correlation between the two systems, irrespective of whether victim statements have been challenged south of the border.
In England and Wales, the victim statement is called a victim personal statement. Mr Lyon is right to say that that statement is taken by the police, who take the evidential statement at the same time. The victim personal statement is submitted with the case papers to the Crown Prosecution Service. I am advised that, where such a statement forms part of the evidence, it is incorporated into what is called, in summary cases, the committal bundle that is served on the defence under the provisions of the Criminal Justice Act 1967. In Crown court cases, where the victim personal statement does not form part of the evidence, it is served separately on the court and the defence. Therefore, circumstances may arise in which the victim personal statement is served on the defence earlier in the process than we anticipate will happen in Scotland, as we are talking about serving the victim statement after guilt has been established or pled.
George Lyon opened his line of questioning by pointing out that many witnesses have been more negative than positive about victim statements. There are concerns about what the victim might say on the offences and about the apparent contradictions in the system. When the committee writes up its stage 1 report, it will be crucial that you have clarified exactly how the victim statement is to be dealt with. The system in England and Wales is an example, but how does it deal with those contradictions? That is an important point for the committee.
As I said, we have been advised by the Home Office that, in England and Wales, there have been no challenges in court to a victim statement.
A situation may arise in which a victim refers to something that has already been the subject of a plea. How is that situation dealt with in England and Wales? If some of the original charges have been the subject of a plea, the sheriff will not consider them, although the victim may refer to them.
There must have been cases where extraneous matters have come in or where the finding of guilt may be different from the original charge. However, the fact that in England and Wales there have been no challenges to a victim statement that would have led to the procedure that would follow if there were a proof, as it were, indicates the efficiency of the courts in being able to rule out and disregard such extraneous matters, which, because of what has actually been proved—
Yes, but we are trying to understand the process rather than whether there have been any challenges. My opinion is that the Executive has been very bold in including the victim statement provision in the bill. I am disappointed about the lukewarm response that there has been and I have to quote—
The response does not square with our consultation findings, either.
Let me quote from our oral evidence—I want to ensure that the record is straight on the matter. A representative of Victim Support Scotland said:
The poor response that you suggest does not square with our consultation, whose findings were supportive of what we are doing.
We would like further clarification of the process, although perhaps not today. What would happen in court were there to be a contradiction between the victim statement and what the victim said? We would like to understand the process.
There are two elements to that. There are the things that the court must disregard because they have not formed part of the case that has been established. As I indicated, the courts do that day in, day out, without specific rules of court to say how they should do so. That is part of the job description of being a judge or a sheriff. It would be improper to take into account something that contradicted the charge on which someone had been convicted.
Let me be clear about that. You are saying that, if a judge or sheriff saw a victim statement that referred to something that was not part of the charge, he would simply disregard it, despite the fact that he may be about to pass sentence and the victim statement can influence the sentence. Is that the process?
Yes. Information in the victim statement that is not relevant to the charge on which the accused will have been convicted must be disregarded by the court.
What do you think about the Sheriffs Association's suggestion that the issue should really be a matter for the Crown—that the procurator fiscal should take receipt of the victim statement and pass on the relevant information to the court for its consideration?
I think that that would be an awful departure from what is done. As I am trying to explain, this is not rocket science that their lordships have to get their minds round. This is something that happens day in, day out.
It is not difficult to understand what you are saying, but perhaps the problem is that a range of organisations, including the Faculty of Advocates, the Law Society of Scotland and Victim Support Scotland, are putting obstacles in the way. The committee thought that it was important to contact the Sheriffs Association, as we wanted to find out what it thought about the issue—after all, it will have to operate the system. Everyone, particularly the Sheriffs Association, said that they thought that the issue should be for the Crown to decide.
Perhaps we thought that there would not be a problem because our proposals would be part and parcel of the sheriff's job. If you are saying that the sheriffs have a problem because of the novelty of the approach—albeit that, in some respects, it is simply a variation on what they have done for years—we must think about how to address that issue. The sheriffs may underestimate their own abilities, but if they have difficulties, I am more than willing to address them. We could discuss how problems might be addressed with the Sheriffs Association.
The aim is to ensure that victims feel part of the process and derive some benefit from it. Your evidence seems to indicate that the system in England and Wales is not dissimilar to the one that is proposed.
There are some differences in respect of timing.
Yes, but by and large the proposed system is similar to that system. An article in the Criminal Law Review said:
I must proceed on the basis of the response that we received to our consultation, which supported—
You must bear in mind the evidence that the committee has received.
Yes, but the totality of evidence must be considered and it shows that the proposals were widely supported. The committee may want to reflect on the fact that the authors of the article in the Criminal Law Review have said in other works that they would like victims to have a stronger role than the one that we propose. We are proposing pilots. I am not sure whether anyone on the committee is suggesting that we have not gone far enough, but the authors of the article have suggested that.
Thank you. I am looking at the clock. As the minister would expect, we have questions on parts 3, 4, 5 and 6 of the bill. However, for the moment, I propose to jump to questions on part 7, which relates to children. We will see what time remains to us for outstanding questions. Scott Barrie has a question about section 43.
The minister will be aware of my views on the subject. To date, the committee has heard evidence of only one possible instance in which a sheriff inappropriately applied the reasonable chastisement rule as it exists at present in the common law. Can you provide us with any further information on that issue?
No, but when the Crown Agent designate gave evidence to the committee, he indicated that that was the case. We have also heard that the chief executive of the Scottish Children's Reporter Administration receives 3,000 reports of physical ill-treatment or neglect each year. Not all those reports result from parents hitting their children, but the figure is not insignificant.
No. That is indeed the case. The minister indicated that he was finding out from the Crown Office whether cases had not been pursued because of a lack of clarity in the present law. That is an important issue, as a number of policy memoranda state that the Executive's intention is to clarify the existing law and to make things more straightforward and simple. Can the minister give us further information on the subject?
The committee heard evidence that the Crown Office and Procurator Fiscal Service was unable to provide information on that subject.
When we discuss justice legislation, the question of the European convention on human rights always arises. The committee took oral evidence and received a substantial body of written evidence from people who adhere to the Christian faith. Those people felt that the provisions in section 43 infringe their rights under article 9 of the convention. Are the Executive's proposals robust and can they withstand challenges that may be made under the ECHR?
Yes, I believe that our proposals meet the convention requirements. A fundamental tenet of many religions is that the civil powers should be obeyed—I am thinking of Romans, chapter 13, for example. For that reason, religious believers should obey the law, particularly when the purpose of the law is to protect vulnerable members of our society. The committee has also heard evidence from the churches network for non-violence, which took a contrary view of the religious position.
Issues have arisen around the age limit in section 43. The age limit seems to be an extra impediment to clarification so, if the intention is to clarify existing law, would it not be easier simply not to mention an age limit?
There is no doubt that my life would have been a lot easier without that limit, but perhaps not because of any issue of clarification. Age is a definitive thing and questions will arise about someone being one day over or one day under a limit. Age limits are set in many aspects of life, not only in our criminal law. If someone happened to be 18 the day after a general election, they would not have the right to vote, whereas someone only a day older would have the right to vote.
There is some consensus that the Executive is right to reduce the scope of the defence by ruling out specifically a "blow to the head", "shaking" or "use of an implement". Some people still feel that things should be left to the parent or family to decide, but I feel that a consensus is emerging.
I agree.
The big issue arises in consideration of under-threes and moderate smacking. We have heard in evidence that in the general teaching of a child a light smack does not harm the child.
Did you say "general teaching"?
I mean teaching the child not to do something. As you will imagine, we have discussed the proverbial electric socket; it was the only circumstance that we seemed to be able to come up with. The committee has heard that a light smack in such circumstances does not necessarily harm a child, although the preference might be to teach the child in another way. Do you accept that?
Section 43(1) of the bill says:
That is a fair point, but the Executive's view is that the bill tries to reduce the scope for physical punishment of under-threes. Do you want to ban moderate smacking of under-threes if it constitutes physical punishment?
If it is done as punishment, yes. That is what the proposal states.
Is not that a judgmental view of the state? If there is no evidence that moderate smacking harms the child—it is merely a preference—then does not that interfere a wee bit with parents' right to decide what kind of physical punishment or deterrent children should have?
Putting children aside for a moment, I have never believed that an assault constituted an assault because it did physical harm to a person. If someone were to kiss another person, in most circumstances that would be a natural expression of a loving relationship. There might be circumstances in which planting a kiss on someone could be an assault. However, it would not mean that any physical harm was done to that person. It is a theoretical but important point of view. Evidence from research by Lepper in 1983 is contained in the document "Child Development: Key Points" from the Scottish Executive central research unit. It states:
Is it fair to say that there is conflicting evidence? We heard from the British Psychological Society that physical chastisement does not necessarily harm a three-year-old. In fact, the society says that children can be more damaged mentally by what a parent says to them.
At the end of the evidence on physical chastisement that Helen Stirling of the British Psychological Society gave to the committee, she said the BPS believes that the
She also said that the preferable way in which to deal with a child would be to talk to the child rather than to hit him or her. However, she did not say that there was evidence to demonstrate that it is harmful to chastise a child physically. She said—as other people have said—that one can do more damage to a child psychologically. I suppose that my question is—
Let us not forget that the Children and Young Persons (Scotland) Act 1937 also contains provisions on infliction of mental damage on children. It is not as if the law is entirely silent on the matter.
I do not necessarily accept that.
I think that that is unlikely. When I appeared before the committee on another occasion, I said that the objective is not to prosecute or to criminalise people for the trivial smack. The Crown Agent designate indicated in his evidence that procurators fiscal already disregard trivial matters in other areas of the law.
By the time the matter reaches the procurator fiscal, a police statement will have been taken from the parent, so the parent will already be in the system.
Your question related to the possibility of making criminals of such parents. Some discretion will apply and the police will exercise discretion, too.
I want to press you on that. You are not the only person to say that procurators fiscal will use their discretion; of course they will. They exercise their discretion in relation to every crime and that will not change. That does not mean to say that innocent parents will be the subject of that discretion. How can you say that it is unlikely that parents will be caught out by procurators fiscal exercising their discretion? If the bill becomes law, procurators fiscal will have to apply it. The bill means that one will no longer be able to rely on the defence of reasonable chastisement in relation to the physical punishment of under-threes. Procurators fiscal will have to apply the act when exercising their discretion.
That is wrong. PFs will not have to apply the act in relation to exercise of their discretion. There are circumstances relating to technical breaches of acts in which procurators fiscal do not prosecute. It is my recollection that the Crown Agent designate's evidence indicated that that was the approach that procurators fiscal adopt on a day-to-day basis in cases involving trivial matters. It is part of the Scottish legal system for procurators fiscal to exercise discretion even in cases in which there might have been technical breaches of legislation. If that breach were trivial, they would not prosecute.
You have said the reverse of that. You have said that procurators fiscal will not prosecute—
Sorry?
You suggested that my line of questioning has been to argue that procurators fiscal will not use their discretion. However, your position seems to be that, because they will use their discretion in every case, it is unlikely that trivial smacking would ever be prosecuted. You have said the reverse of what you indicated.
We are perhaps at cross-purposes about what I said, so I will quote what the Crown Agent designate told the committee. He stated:
Let me be clear. You are asking Parliament to pass a law on the understanding that the Procurator Fiscal Service will apply its discretion. Do you not see that that is what you are asking us to do?
I am asking Parliament to pass a law that will become part of the law of Scotland and which will apply in the way in which the law of Scotland is administered and operates. As we have heard from no less a person than the Crown Agent designate, procurators fiscal are required to exercise their discretion in trivial cases.
I apologise for my late arrival. The planes from the Western Isles are not running to schedule.
I sympathise fully with you on that one.
I am sure that you will certainly be able to empathise.
Bear with me while I read that paragraph to ensure that I have the thing totally in context.
I refer again to the words
We begin with the starting point that to hit anyone is an assault, but the 1937 act provides the defence of reasonable chastisement to those who have certain relationships to children, in particular parents. Even with the bill as it stands, there is a level of hitting a child beyond which hitting would be unreasonable. We are not suggesting that the bill should suddenly make such actions reasonable. Therefore, to children over the age of three the law continues as it is; reasonable chastisement would not be a defence in a charge of assault.
We move on to section 44, which is entitled "Youth crime pilot study".
I could start by asking what the Executive's current policy is on youth crime, but I will leave that to others.
A considerable amount of work has been done on offending. I am not sure that a comprehensive study such as that to which the member refers has been produced.
We have asked a number of witnesses to provide us with evidence of how well the children's hearings system and different systems in other countries work. Until now, we have found it difficult to obtain evidence that justifies the claims that are made for various systems. That is the background to my question. Does the justice department possess a comprehensive study of the effectiveness of children's panels?
We do not possess such evidence, although we plan to carry out research as part of the youth crime strategy. The committee has been given a paper on youth crime statistics, which provides factual information on the ages of offenders and says what age groups are principally responsible for crime. There are very strong indications that a disproportionate amount of crime is committed by young people aged between 16 and 24, which includes a number of persistent offenders. The research that the member seeks is not yet in existence, but we aim to undertake it.
Have comparisons been made with the situation in other countries that would enable us to reach conclusions?
In England in 2000, 6 per cent of 10 to 17-year-olds—320,600 children—were arrested and 3.5 per cent were convicted or cautioned by the police. In Scotland in 2000-01, about 14,000 children were referred to the children's reporter because they had committed an offence. Of those, 90 per cent were assessed as requiring informal measures to tackle their offending. Survey-based estimates of violent crime in Scotland remained roughly level over the period between 1981 and 1999. In England and Wales, violent crime rose in 1995 to a level that was 75 per cent higher than the 1981 level. It is estimated that by 1999 violent crime in England and Wales had fallen back to a level that was 47 per cent higher than the 1981 level.
The committee and those giving evidence to it have expressed concern about the types of offences that might be dealt with by children's hearings under the pilot study. It was claimed in the Parliament last week that a range of serious offences—including murder, rape and goodness knows what—might be referred to the children's reporter unit. Exactly how many serious offences are referred to the children's hearings system?
The figure is minimal. Statistically, it is almost off the radar screen.
Might the figure be 0.1 per cent?
That figure certainly rings a bell.
So, of 26,000 cases that were referred last year, 26 could be categorised as serious.
I have a very poor read-out of the figure. Only a very small number of cases involving serious crimes are referred to the children's hearings system. Only one case of assault with intent to ravish was referred. Referrals are a matter for the Lord Advocate, who exercises his discretion independently of ministers. It is a complete red herring to suggest that a procession of rapists, murderers and serious violent offenders aged 16 and 17 will be referred to the children's hearings system.
Section 44 proposes only a pilot study; it does not introduce a system that will be used throughout Scotland. The Deputy Minister for Justice made it clear that once the study has been evaluated, you would have to come back with primary legislation to enable the practice to continue and to become widespread throughout Scotland.
That is the case.
The committee has heard that there are difficulties with implementing supervision requirements in certain parts of the country. Clearly, any pilot would have to be conducted in circumstances in which the full range of disposals was available. What assurance can you give that, in the areas in which you decide to go ahead with pilots, resources will be made available? It is clear that the lack of social work reports is a key issue in relation to the performance of the children's hearings system.
I am aware that, in some areas, there are problems with recruiting social workers, and those problems lead to difficulties in getting reports. Those areas would be ruled out for the pilot study. Glasgow is an obvious example. The pressures on the system in Glasgow are such that it would not make sense to identify Glasgow as a pilot area.
That answers some of the grave concerns that have been expressed about whether the services could support the additional work created by the pilot study, should the study go ahead.
Those criteria will be key.
If you are going to spread the pilot study throughout Scotland, the question arises as to whether the results will be reliable or representative. It is clear that you are keen to pick the right areas in which to run the pilots. Will that give you a false picture when you come to evaluating the study?
No, not if the evaluation is done properly and is able to take into account and reflect the relevant factors. Let us assume, for the sake of argument, that the pilots are successful. One would expect that a proper detailed evaluation would highlight the factors that have contributed to their success. I hope that the evaluation will provide valuable information for improving the way in which we deal with youth justice throughout Scotland.
How long are the pilots likely to run, when will the evaluations be carried out and what will be the process after that?
The pilots will run for two years. Although it is impossible to say how long the evaluation will take, it should be carried out relatively sharply on the back of the pilots if it is to be meaningful. Anyway, it is not a question of waiting two years and then sending researchers in to evaluate the schemes. We will have an integrated system of evaluation. Without committing those researchers to any time scale, I think that the results should be available a relatively short time after the pilots are completed.
The Commission for Racial Equality in Scotland has expressed the view that, for the purpose of section 44, offences with a racial dimension should never be regarded as minor. Do you have a view on that?
I have a long record of treating racial crime very seriously indeed. However, in such matters, it will probably be up to the Lord Advocate to determine how to deal with cases that have a racial content. It would be improper of me to pre-empt or second-guess him on a matter that is unquestionably within his discretion. That said, I have never made any attempt to conceal my abhorrence of crimes of a racial nature.
Will you give us further guidance on the types of offending behaviour that will be included in the pilot study? Will the children's panel deal with a wider range of such behaviour—at the moment, it does not deal with all serious offences—or will the situation remain almost the same?
It is difficult to see how the range of offences that the children's panel deals with will be any wider than it already is. We have indicated that any offences will be minor. Again, the decision whether to prosecute will be a matter for the procurator fiscal, acting under the Lord Advocate's guidelines.
I want to clarify this point, because there has been much concern about whether the children's panel will deal with serious offences.
It is certainly not intended for serious offences.
So the 0.1 per cent figure that has been quoted will remain the same.
It might even be less.
As you will accept, our inquiry has been bedevilled by the lack of hard statistics. I am rather intrigued by the statistics on youth crime in annexe A of the Executive's additional memorandum. Where did those come from?
They come substantially from the education department, which is primarily responsible for the children's hearings system.
The goalposts move a couple of times in these figures. We are told that approximately 0.2 per cent of Scotland's children up to the age of 16 are referred because they have committed offences. We are then told that there are 920,000 young people aged eight to 21 in Scotland and 8 per cent of those have offended. It seems to be unrealistic to expect that too many teeny terrors up to the age of five or six are likely to be reported to the children's panel. The figure of 0.2 per cent does not tie in, does it?
There is a difference. The 0.2 per cent refers to children up to the age of 16. There are 920,000 young people aged between eight and 21. There is therefore a difference in the baseline figure, if I can put it that way.
Yes, but one could operate on the reasonable and reasoned presumption that the figure of 0.2 per cent of children up to the age of 16 means that until the age of six or seven, children are not going to be causing too many problems, are they?
Up to the age of eight, by definition, children cannot commit a crime.
Thank you very much for that. You have underlined how false that figure is. You are therefore saying that it is young people aged between eight and 15 who commit offences. That figure is considerably higher than 0.2 per cent when it is applied to the population figure.
I would have to check whether that is the basis for those figures. If an offence cannot be recorded as such when the child is under the age of eight, then the 0.2 per cent probably does refer to children over the age of eight. Members will be aware that there is legal authority that a child cannot be referred to a children's hearing for an offence if the child is under eight.
That was my understanding and you have confirmed it. It proves that the figure of 0.2 per cent is completely false.
I am not going to say that you are wrong, but we are obliged to clarify what the baseline is for that 0.2 per cent.
I would be grateful for that.
The real offending is done by those aged 18 and over. As I said earlier, the peak comes at that age.
I accept that. Do you accept that there is considerable unease about the pilot proposals?
Yes, I am aware of that.
That unease is predicated on the fact that people are not all that satisfied that the children's hearings system, as it is constituted, is working. I ask you to bear in mind evidence such as that given by the Scottish Children's Reporter Administration two weeks ago that in Glasgow, for example, very few cases of offending are being referred to the panels. That is because the panels naturally and understandably require to give priority to cases where children are at risk.
I am aware that Alan Miller gave evidence and accepted that there are some problems with the children's hearings. As I indicated in an answer to an earlier question, that is why Glasgow would not be the place to run the pilot study. Glasgow has a number of problems, not only with the hearings but with the recruitment of social workers, and it would not be the appropriate place to conduct the pilot that is being proposed by this part of the bill.
I am not seeking to minimise the problems in other parts of Scotland. However, the major problems are in cities such as Glasgow.
I am not disputing that there is a problem in Glasgow. Members from Glasgow have made that clear to me very forcibly. Nor do I deny that Alan Miller identified some of those problems. We are trying to get a handle on the extent and nature of those problems. However, as I indicated earlier, Glasgow would not be a suitable place to run a pilot.
I accept that, from your position, that is entirely correct. However, when the existing system is creaking at the seams in parts of Scotland, and when it is manifestly not working, is it not risky to extend the system to include 16 and 17-year-olds—and to 18-year-olds in respect of the spillover—without ensuring that the existing powers of the children's hearings system are in place and that the system is working effectively? At the moment, the system is not working effectively.
I do not believe that we are in the realms of an either/or situation. I do not believe that proposing a youth crime pilot study should blind us to the difficulties that exist within the children's hearings system in certain parts of Scotland. I can assure the committee that the youth crime working group is considering how that issue can be addressed.
I am afraid that we must soon draw to a close. Unfortunately for us, we have many more questions to ask on parts 3, 4 and 5 as well as on some of the amendments that the minister has indicated that he will lodge.
If the committee provides written questions, we will give as prompt a turnaround on the answers as is possible.
Perhaps the clerks can discuss with your department which questions could be answered by way of correspondence. However, we may need to leave the door open as to whether we call you back to give further evidence as that is a matter for the committee to decide. Perhaps we can liaise over that possibility.
We will certainly co-operate as much as we can. I appreciate that, although we have covered a lot of ground, some areas have not been covered.
I assure you that the committee has worked hard on the bill. While everyone else was benefiting from the Parliament's dormant weeks in Aberdeen, we had some full-day meetings here in Edinburgh. I do not want the minister to think that we have been slacking in any way.
I hope that I have not said anything to give that impression. I am very conscious of the wide-ranging nature of the bill and of the fact that we have said that we intend to lodge amendments.
Stewart Stevenson wants to ask one last question, which is on part 12.
Some concern has been expressed about the granting to civilians of police powers, such as those of arrest, search and detention. Are there any instances in which such powers have been granted to civilians? If so, how do those operate? How should we view the concerns that have been expressed?
The objective is to recognise that in some forces, such as Lothian and Borders police, civilians already operate within the courts and provide security. We want to put that on to a proper statutory basis. Clearly, it is important to recognise that these people will be under the direction of the chief constable; they will not be independent operators.
Is it necessary for them to have the power of arrest, or would the power of detention be sufficient? Will you set national standards, or will it be up to individual chief constables to decide how they exercise these powers?
It is intended that it will be up to chief constables how the powers are exercised. It may be that some will choose not to use them. I am advised that the Association of Chief Police Officers in Scotland intends to consider and agree with the court authorities a protocol to govern the arrangements. Once it is finalised, it is hoped that the protocol will give further reassurance about the maintenance of security and safety in the courts.
I have a couple of questions on section 61. It has been put to the committee by the Scottish Police Federation that many officers are on light duties in court. We have not received the figures for that.
They are on light duties?
Yes, because of injury or illness. Part of the proposal is to take those officers out of court and put them on the streets. I wonder about the effect of your objectives, minister.
As I indicated, individual cases and getting the balance right must be a matter for chief constables. It would be invidious to ask ministers to make detailed decisions. It is also fair to say that the Scottish Police Federation has been among the foremost organisations that have bent my ear about the amount of time that police officers spend sitting around in court.
Yes, but they made a fair point. Other duties take up police time, not just serving in court. They are talking about the amount of time they spend in court waiting to be called to give evidence.
That is another issue. Intermediate diets have had a considerable impact on that, but I accept that there is more to do, which is why we have Sheriff McInnes and Lord Bonomy examining the issue. At the end of the day, giving evidence is part of what being a policeman is about. There is no point in catching criminals if we cannot convict them, and evidence is an important part of that.
Should there be a duty on chief constables to demonstrate that removing police officers from court will have a particular effect, such as more police officers on the streets or a saving to the police budget? Should they be under a duty to show why they took a decision? We are looking to pass on heavy-duty powers to civilians. I am not sure that you have demonstrated instances in which that already happens. They are few and far between.
Since 1998, Lothian and Borders police have had eight civilians providing court security. That is believed to have worked well and been successful. I think that we have also been given the examination of what are non-core police roles. That asks whether a police officer must perform particular functions. Whether civilians can fulfil those functions and release police officers for other functions should be considered. In fact, section 61 will give powers to put that on a proper statutory footing.
That is what we would like the chance to examine. I give notice that there will be further questions on that matter. We are unable to get answers about how many police officers will be freed up by using civilian employees. Merely saying that it is a matter for the chief constable is difficult to support. We would want to know how many officers could be freed up by using civilians, what the purpose of doing that is and what can be achieved. We have had no figures on the alleged savings.
On the prisoner escort function, the sub-group indicated that the whole-time equivalent of around 570 police officers and 200 prison officers were committed annually to prison escort tasks throughout the country and therefore not available for core duties. It is impossible to tell what the figures would be for court security officers because we do not know yet just what kind of mix chief constables would make. As I said, it might be the general run of the mill for the chief constable to deploy civilians, but there might be a particular case in which he thought it would be more appropriate to deploy police officers. That is why it is impossible to quote a precise figure. However, the powers of section 61 will provide chief police officers with the flexibility to make savings.
Thank you for that. You have been with us, minister, for just over two and a half hours. I can only thank you for your and your officials' time. As I said, there are many questions that we did not get round to asking because of the sheer length of the bill. However, we would like to discuss with you how we could get answers to issues that we feel need to be covered.
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