Victims and Witnesses (Scotland) Bill: Stage 2
Good morning. I welcome everyone to the 32nd meeting of an extremely hard-working Justice Committee, which will sit again tomorrow. We never get away from one another.
I ask everyone to switch off mobile phones and other electronic devices completely as they interfere with the broadcasting system even when they are switched to silent.
No apologies have been received. Members will be aware that I want—in fact, we all want—to conclude by 12.30 in order to allow those of us who are travelling to Helen Eadie’s funeral to leave.
Item 1 is the continuation of stage 2 proceedings on the Victims and Witnesses (Scotland) Bill, which I hope to complete today. I welcome the Cabinet Secretary for Justice and his officials. As with our previous meeting, the officials are not here to answer questions at this stage. Members should have with them their copies of the bill and the marshalled list and groupings of amendments for consideration.
After section 16
We move straight to the amendments. I hope that John Finnie is sitting comfortably, because he is up first. Amendment 84, in the name of John Finnie, is in a group on its own.
Amendment 84 aims to designate as standard special measures in respect of intermediaries. There is significant evidence of the benefits of supporting child victims and witnesses in particular to give best evidence, which we all want. That is the case particularly if there is an additional vulnerability—for example, if the person has communication or special support needs, learning difficulties or a disability. In the current adversarial system, the language and forms of questioning are often confusing, which can be distressing for hardy souls, never mind people in that position.
I understand that ministers have indicated that they intend to use powers under section 15 to assess the effectiveness of intermediaries as a temporary additional special measure, with a view to using section 17 powers to prescribe intermediaries as a further special measure. I would welcome confirmation of that if the cabinet secretary felt able to give it.
I move amendment 84.
I thank John Finnie for raising the issue, and I am keen to explore further the potential benefits of using intermediaries to assist vulnerable witnesses who have communication and support needs. I urge some caution, however, as it is crucial to cost and pilot additional special measures to allow for a proper evaluation of their effectiveness and benefit to witnesses prior to any wider roll-out.
As John Finnie mentioned, discussions took place with victim support organisations and others during the witness review and the development of the bill with regard to piloting additional special measures. Section 15 allows that to happen, and I am happy to commit to holding further detailed discussions with stakeholders and our justice partners following the bill’s passage in order to explore the establishment of pilot schemes.
I know that Children 1st and the Royal College of Speech and Language Therapists are particularly interested in the issue, and their involvement will be invaluable. I invite John Finnie to withdraw amendment 84, and give my commitment to hold further discussions on the issue and to consider piloting the use of intermediaries as a special measure once the bill is passed.
Thank you, cabinet secretary—I am grateful for those words. That being the case, I will not press my amendment.
Amendment 84, by agreement, withdrawn.
Section 17 agreed to.
After section 17
Amendment 85 not moved.
Section 18 agreed to.
Section 19—Victim statements
Amendment 29, in the name of the cabinet secretary, is grouped with amendments 86, 30, 68, 31 and 32. If amendment 68 is agreed to, amendment 31 will be pre-empted.
I speak first to amendment 32, which is in my name. Victims of crime should clearly have the opportunity to communicate to the court the physical, emotional and economic impact of crime. That is why I introduced the victim statement scheme, which allows victims to give a written statement describing how the offence has affected them. However, I have heard first hand from victims of crime who struggle to fully convey in writing the impact that the crime has had on them. I have been asked why it is not possible to make a victim statement by way of a pre-recorded video. In this day and age, we should explore whether such alternative means of making statements are viable; we should also ensure that we have the flexibility to utilise new technologies as they become available.
Amendment 32 introduces an order-making power into section 14 of the Criminal Justice (Scotland) Act 2003 to allow the Scottish ministers to specify the format in which victim statements can be made. Crucially, that allows formats to be piloted for specific periods of time and in specific areas. Taking a power to pilot new formats will allow for a full evaluation of any new approach to be carried out, taking into consideration the views of victims, the courts, the Crown and the defence. If pilots are successful, any new statement formats can be extended more widely.
The new power will enable the Scottish ministers and criminal justice partners to take a balanced and considered approach to extending the format in which victim statements can be delivered, while allowing for the development of new formats in response to advances in technology.
In amendment 86, Graeme Pearson has made a suggestion in the same vein that allows for different means by which a victim statement can be made. I welcome his attention to the matter. I have concerns, however, regarding the extent of amendment 86, in that victims would be able to read their victim statement live in court. I am not sure how well that would work in practice, nor am I persuaded of the benefits of such a measure. I have concerns about the potential impact on the victim.
That said, I would not want to rule out that proposal altogether and would be happy to revisit it once greater consideration has been given to how such a measure would operate in practice and the benefits and risks to the victim have been explored in more detail, which will also be informed by any pilots of alternative forms of victim statement.
Amendments 30 and 31 in my name amend section 19 of the bill. The effect is that children over the age of 12, rather than 14, will be able to make victim statements in their own right. At present, children over 14 are able to make victim statements. However, as a number of victim support groups, including Children 1st and Scottish Women’s Aid, have pointed out, the age of 14 is inconsistent with other legislation relating to children, primarily the Age of Legal Capacity (Scotland) Act 1991, which provides that children over the age of 12 have testamentary capacity and are able to make decisions about many things, including instructing a solicitor.
I agree that it is appropriate to align the provisions around victim statements with existing legislation as far as possible and therefore I am taking this opportunity to introduce an amendment at stage 2 to lower the minimum age from 14 to 12. However, I am not persuaded that there is a need to totally remove the minimum age limit at which children may make a statement in their own right, as proposed by Elaine Murray in amendment 68.
Basing a decision on whether a child is capable of making a statement solely on the age and maturity of the child would involve additional delays in the process by requiring an assessment by a psychologist. That delay and additional process could cause further stress to the child. It is more appropriate that statements should be prepared by a parent or carer on the child’s behalf, taking into account the views of the child, as proposed in the bill and by amendments 30 and 31.
I consider that requiring the court to make a decision on which carer should make the statement, where there is more than one possible candidate, as set out in amendment 68, is an unnecessary requirement. Again, that step will cause additional delays and prolong the process for the child. Where more than one person is eligible to make a statement of behalf of the child, there is existing provision in section 19 to provide for agreement to be reached by the carers themselves. It also sets out that the child must be allowed to express their views and that those views must be taken into account when the decision is made. That less formal approach does not require the involvement of the court, thereby reducing the possibility of delays and additional stress on the child.
Amendment 29 is a minor drafting amendment that does not alter the overall effect of section 19 and is in consequence of amendment 32.
I urge Elaine Murray and Graeme Pearson not to move amendments 68 and 86 respectively.
I move amendment 29.
When we considered amendments to the bill at our previous meeting, I rehearsed for the committee the evidence that we had received from victims and the general wisdom out there about the treatment that many—although not all—victims and witnesses currently receive in our courts.
This is perhaps a coincidence—although I think that such experiences are probably a regular occurrence—but in The Courier this week, there is an article about the treatment of children in the Dundee courts. A parent of children involved in a particular case feels that they received unhappy treatment at the hands of the court and that they were treated badly. I think that the amendments that we are discussing are absolutely vital to the wellbeing of children in our criminal justice system.
I welcome the fact that the cabinet secretary is at least prepared to consider the proposal that an oral statement can and should be received from a victim in the event that a victim wishes to make such a statement. I am concerned, however, that in the cabinet secretary’s amendment 32, there is no specific mention of oral statements.
I hope that, between now and stage 3, we will be able to discuss the issue further, because there is no doubt that the evidence that we received from victims indicated that some victims want to be heard and to make an oral statement at the completion of a case. It seems unnecessary that we should frustrate such a desire on the part of a victim. Indeed, making an oral statement may allow a victim to achieve some measure of closure at the conclusion of what must be a very difficult process for them. We have to accept that, in the 21st century, courts are not solely about law; they are also about delivering some means of justice and closure.
At this stage, I am happy not to follow through on my amendment 86, but I sincerely hope that the cabinet secretary will indicate that he will engage in some earnest discussion about the proposal.
I will leave it to Elaine Murray to decide her way forward in relation to amendment 68, but I think that it is right that children should have the opportunity to speak if they desire to offer such evidence. It is not necessarily the case that the court process would be unnecessarily delayed, as the court would have made its judgment at an earlier stage as to whether a child was capable of giving evidence and would have assessed the child accordingly before that part of the process was complete.
Presumably, advice could be given to the child as well as to the parent or guardian in relation to making a statement at the end of the process. I think that we should give children the opportunity. They should not be left to live the rest of their lives regretting that they never had the chance to unburden themselves.
09:30
I welcome the cabinet secretary’s amendments 30 and 31, which lower the age at which a child may automatically make a victim statement to the age of 12. That of course is in line with the presumed age of maturity contained in the Children (Scotland) Act 1995 and in other more recent legislation.
My amendment 68 was drafted after a discussion with Children 1st, which strongly believes that younger children of sufficient age and maturity should be able to make a statement should they wish to do so. The amendment proposes that where a child does not have sufficient age or maturity, a parent or carer may make the statement on their behalf. However, there might be circumstances in which a parent or carer is not able to make such a statement, and the amendment proposes that, in such cases, a qualifying person may do that on the child’s behalf.
Section 6(1) of the Children (Scotland) Act 1995 requires children’s views to be sought where a major decision is involved. The act provides that the relevant person must
“have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of the child’s age and maturity.”
The amendment is therefore in line with other legislation.
Amendment 68 also proposes that the age and maturity of a child under 12 would be assessed by a health professional—not necessarily a psychologist—so there would not necessarily be a delay as a result of involving that particular type of health professional. In addition, the amendment proposes that the court must determine which qualifying person should make the statement on the child’s behalf.
Amendment 68 would also require the child concerned to be given the appropriate support either to make the statement themselves or to express their view as to which person does so on their behalf. That is in line with the Children’s Hearings (Scotland) Act 2011, which provides for advocacy to be provided to all children who require such support to make their views known when they are involved in the children’s hearings system. I believe that that is a useful precedent for legislating for children and young people to be supported to make a victim statement whatever their age.
I seek clarification on amendment 68 with regard to a child who is under 12. I concur with what everyone has said: we are considering victims.
You said that the child would be assessed by a health professional, not a psychologist. Are you thinking of any specific type of health professional? Who would assess what type of health professional would be involved? I have concerns about the effect on children under 12 of having to go through certain psychological examinations. Can you expand on that a wee bit?
Amendment 68 just refers to a health professional; it does not specify which particular type of health professional. It could be a general practitioner who knew the family well, for example.
I will deal with Graeme Pearson’s amendment 86 first. It seems to me that there is provision in the Criminal Justice (Scotland) Act 2003 for steps to be taken to allow such oral evidence and that the proper way forward in the first instance is to try some pilot schemes and consider and evaluate how they work.
On Elaine Murray’s amendment 68, I agree that the appropriate age is 12, not 14, which would bring the bill into line with the Age of Legal Capacity (Scotland) Act 1991 and the Children (Scotland) Act 1995. That is common ground. Having reached that view, I again take the view that we should see how that operates. The committee did not take any oral evidence on the question of reducing the age below 12.
I am slightly confused by the reference in amendment 68—in proposed new subsection (11B) of section 14 of the 2003 act—to
“where a child is not of sufficient age and maturity.”
Age is not supposed to be a criterion, yet somehow or other the amendment is bringing that part back in. Overall, I am confused by the amendment. I do not think that we have given the issue enough consideration. I think that we should just stick to setting the age at 12.
The issue is that in other legislation children under the age of 12 who have sufficient age and maturity are enabled to make their wishes known about what happens to them—in this case, they should be able to describe to the court how they feel as a victim. Amendment 68 makes provision for younger children. I was not on the committee at the time, so I accept that you did not take any particular evidence on the issue.
The issue was raised by Children 1st, which has been very much involved in supporting child victims and which thinks that it is important to include in the bill the measures proposed in amendment 68 to enable children under 12, who wish and are able to do so, to make their feelings known, either in person or through an intermediary, such as a parent, guardian or other qualifying person. I do not know whether that provides clarification, but that was the intention behind the amendment.
I have a concern that young children might feel that they ought to say something when they do not want to. The existence of such a provision might make them feel that they ought to say something when that might not be the best thing for them to do. I appreciate that an assessment would be done by a health professional such as a psychologist, but—I will be interested to hear what the cabinet secretary says about this—when provision is made to allow something to be done, people sometimes feel that they ought to do it when that might not be in their best interests. Indeed, that might be more damaging than not having closure, to use that awful American expression. I have concerns about amendment 68.
I will deal first with Graeme Pearson’s amendment 86. The powers that are provided are generic, not specific. They are meant to be inclusive, not exclusive. We cannot predict what technology will be like in five years. Five years ago, we could not have envisaged that someone would be able to get their phone out, take a video and put it before a court, but that is the world that we live in. Such things are perfectly feasible. We want to ensure that, as technology evolves, we can adapt to it.
We are quite open to looking at suggestions, but we must do so with the courts, the defence and the Crown. What would happen? Would the script of a statement have to be checked before it was given? Would it have to be run by the court? If someone went off script, would that nullify the trial? Would there have to be a proof in mitigation? Could a victim who went off beam—if I can put it that way—and beyond what was in the script when giving a statement be challenged? There are situations in which the defence is open to a proof in mitigation as regards the defence statement.
I fully accept the principle that Graeme Pearson is applying, which I think is valid, but, as is always the case with such matters, the devil is in the detail. I give him the assurance that I am happy to have discussions with the judiciary and all parties involved to ensure that, if such an initiative is to be piloted, we know what can be said, the constraints that exist and what would happen in particular circumstances, because the last thing that we want is for the victim to end up in a worse position or for there to have to be a retrial because of something that was said or done.
With regard to Elaine Murray’s amendment 68, I think that we tend to take a societal view of such matters. That is why we have had a debate in the Parliament on the age at which people can vote in the referendum. A very mature 15-year-old cannot vote, because we have decided that people can vote at the age of 16. South of the border, there was a debate at the weekend about lowering the age of consent. I am not persuaded of that—we have decided that 16 is the right age. In this case—in relation to victim statements—the right age is 12.
As Rod Campbell indicated, if we decide to change the age of legal capacity, we will be more than happy to review the matter, but I think that, broadly, a societal view is taken of such matters on the basis of how we view a child and their capacity. I think that it is appropriate to tie the age at which a victim statement can be made to the age of legal capacity. If a person can instruct a solicitor, I think that they are capable of giving a victim statement.
I fully understand where Elaine Murray is coming from—her view is that there are very mature young people under the age of 12 who might want to make a victim statement. However, we take a general view on the voting age and the age of consent, and I think that we should take such a view on the age at which an individual can give a victim statement.
Amendment 29 agreed to.
Amendment 86 not moved.
Amendment 30 moved—[Kenny MacAskill]—and agreed to.
Amendment 68 not moved.
Amendments 31 and 32 moved—[Kenny MacAskill]—and agreed to.
Section 19, as amended, agreed to.
Section 20—Duty to consider making compensation order
Amendment 69, in the name of Elaine Murray, is in a group on its own.
Amendment 69 would require the court to ascertain the views of the victim prior to making a compensation order and would prohibit the making of such an order when the victim has notified the court that they do not wish to receive compensation from the offender. I believe that evidence was taken on the issue at stage 1. The victims of sexual offences, for example, may find payment of compensation for the offence that was perpetrated against them quite abhorrent.
I move amendment 69.
Amendment 69 seems to be sensible. I am minded to support it, after I have heard what the cabinet secretary has to say.
We should be slightly careful about going too far. It is right that courts ought to “consider” things, but we should not be perceived to be tying the hands of the courts and trying to tailor their discretion.
Every time we try to move forward in any way that could be described as radical, we find a million reasons why we need to be careful, or whatever. At the end of the day, it would do no harm to allow a victim to say to the court, “I don’t want this person’s money”. That seems not to be radical and would give some power to victims in situations in which they often feel completely powerless.
At the moment, courts may consider imposing a compensation order on an offender, but are under no obligation to do so. The intention behind section 20 of the bill is simply to ensure that the court considers imposing compensation orders in relevant cases; that is not to remove its direction to consider all the circumstances. Courts already consider whether it is appropriate in the circumstances to make a compensation order, and the factors that are considered rightly include views that are expressed by the victim.
I am aware that Rape Crisis Scotland and Scottish Women’s Aid have expressed particular concern about compensation orders being imposed in domestic abuse or sexual assault cases; victims often do not wish such orders to be made in such cases. I assure the committee that the bill will do nothing to preclude the court from using its discretion and imposing compensation orders only when it considers that to be appropriate. I therefore consider that amendment 69, although well-intentioned, is unnecessary.
I urge the committee to consider the practical implications of amendment 69. It would require the court to seek the views of victims in every case in which compensation might be applicable. That would be an onerous undertaking that seems hardly to be proportionate, especially given that the concerns relate to a specific group of offences. Furthermore, it is unusual for a compensation order to be awarded for offences in this group. To ask every victim whether they want a compensation order could also have the unintended consequence of raising expectations. When victims express a desire to receive compensation and an order is not granted by the court following consideration of all the circumstances of the case, the fact that views have been actively sought might leave victims feeling less empowered, rather than more so.
In summary, the matter can be better dealt with through guidance and training. I ask Elaine Murray to consider withdrawing amendment 69, with my assurance that we will continue discussions with the Judicial Office for Scotland and the Crown Office and Procurator Fiscal Service to ensure that the concerns that have rightly been raised by Scottish Women’s Aid and others are addressed.
I appreciate that the cabinet secretary and Roderick Campbell have far more experience in matters of the law than I do, but I am slightly confused by their interpretation. Amendment 69 says that
“In considering whether to make a compensation order, the court must take steps to ascertain the views of the victim.”
The victim would therefore be asked only when a compensation order was being considered—not in every single case. Victims are given the opportunity to make victim statements and so on, so they are communicated with anyway. Surely being asked about compensation could be part of that communication.
I am not seeking to tie the hands of courts in any way. All we are saying is that if a victim does not want to have a compensation order, one will not be awarded. That might be seen to be unlikely, but the fact that it would be in the legislation would mean that the victim of sexual or domestic abuse would not have to fear that it might happen; they would not need to fear that they would in some way be being paid off for the crime that had been committed against them. I am sure that we can all understand how that could be extremely offensive.
I am not therefore quite sure that I accept the arguments from Roderick Campbell or the cabinet secretary. I am prepared to seek to withdraw amendment 69 at this time, although I have every intention of considering the matter further at stage 3 in order to ensure that the wording is as good as it can be.
Elaine Murray seeks to withdraw amendment 69. Are members content with that?
Amendment 69, by agreement, withdrawn.
Section 20 agreed to.
Section 21—Restitution order
09:45
We turn to restitution orders. Amendment 70, in the name of Alison McInnes, is grouped with amendments 71 to 73.
Amendments 70 to 73 would extend restitution orders and the associated fund to all emergency workers. That would mean that an assault on any emergency worker—not just a police officer or staff member—could lead to the offender’s being required to make a payment to the restitution fund. In turn, those emergency workers would be able to access the facilities and services that the fund would establish.
Amendments 70 and 72 go together and would extend the bill so that anyone who is convicted of
“assaulting or impeding ... providers of emergency services“
under section 1(1) of the Emergency Workers (Scotland) Act 2005 could be the subject of a restitution order. That would cover people acting for the Scottish Ambulance Service and members of the fire brigade as well as the police.
Sadly, such incidents are not rare. The Scottish Ambulance Service tells me that there are more than 200 incidents of physical assault every year, and there were 80 attacks on fire service personnel in 2011-12, so across the board our emergency services personnel too often encounter threatening or violent behaviour.
I propose further, through amendments 71 and 73, to extend the order and the fund to those who are named in section 2 of the 2005 act, which would widen the provision to include prison officers, members of the Maritime and Coastguard Agency, the Royal National Lifeboat Institution, medical practitioners, nurses, midwives, social workers and mental health officers, but only if they were assaulted or impeded when responding to emergency circumstances.
The Law Society of Scotland supports extending restitution orders to a broader group of emergency workers. It strikes me as being unfair and inequitable that only an assault on a police officer should merit a restitution order, and that only that segment of our emergency services personnel should be able to access the specialist victim support services that the fund will establish.
I move amendment 70.
I absolutely agree with Alison McInnes in theory. It seems to me that there ought not to be a distinction in theory between police officers and other emergency workers, but it is a question of practicalities. The committee had a fairly uniform view at stage 1, and the Government’s response was that it is not always easy to identify appropriate beneficiaries for all emergency workers. It is because of the practicalities of doing so that I cannot support amendment 70, although I agree with it in principle.
I am sympathetic to the intention behind the amendments, but I will listen with interest to what the cabinet secretary says about the practical difficulties that may or may not arise.
Roderick Campbell has already said a lot of what I would have said. As I have said before, we are sympathetic to the idea of extending restitution orders to workers other than the police. However, we must consider what would actually work. What makes restitution orders workable is the existence of an offence that is defined in terms of a group of workers—the police—for whom there are specific support services already in place, including the Scottish Police Benevolent Fund and the Police Treatment Centres.
Although offences of assault on emergency workers are defined in the Emergency Workers (Scotland) Act 2005, there is no specific support service or organisation that corresponds to those offences. Respondents to the consultation, and those who have commented subsequently, have not been able to suggest a suitable beneficiary to whom moneys could be paid from the restitution fund. There are some benevolent funds for distinct groups of emergency workers, such as the Fire Fighters Charity, the Ambulance Services Benevolent Fund and the Social Workers Benevolent Trust. Those organisations may or may not be suitable beneficiaries, but in any case they cover only limited categories of workers, and not all of those who are set out in the 2005 act.
Would it be appropriate to hand moneys that were recovered in respect of an assault on a social worker to the Fire Fighters Charity? In theory, the administrators of the restitution fund might ensure that moneys that were received following an assault on a social worker would go to the appropriate trust. However, that would greatly increase the burden on the Scottish Court Service, which would have to split the charges in the 2005 act into categories of worker in order to ensure that money could be appropriately ring fenced when it was paid in to the restitution fund. There would also be a burden on the operator of the fund to ensure that the moneys that were received for certain offences were disbursed to organisations that support victims of those specific offences. We have to question whether such effort would be, or could be, proportionate.
To put the situation into perspective, in 2011-12, there were 3,357 persons with a charge proved under section 41(1A) of the Police (Scotland) Act 1967, and 193 persons with a charged proved in respect of all emergency workers under sections 1 and 2 of the Emergency Workers (Scotland) Act 2005. Splitting down those 193 offenders into categories according to type of emergency worker—there are 12 categories in the act—will produce very low returns. In the two years from January 2010 to February 2012, fines worth £330,000 were levied in respect of the offence in the Police (Scotland) Act 1967, which has been replaced by section 90 of the Police and Fire Reform (Scotland) Act 2012. The Scottish Court Service advises, on the other hand, that there was no fine income at all in 2011-12 and 2012-13 from the charges under the 2005 act because those sentences were all dealt with by community payback orders or imprisonment. It is clear from that that the sums that would be raised from fines arising from assault on emergency workers would struggle to cover the cost of administration.
If it were broken down into the dozen or more funds that might prove to be necessary, such a provision would be far more likely to be an administrative cost rather than offer any benefit. It is open to the courts, where appropriate, to impose a compensation order to benefit a specific victim, which includes emergency workers and other people in public-facing roles, just as it is open to the court to make individual compensation payments to police officers in such circumstances. Although to some extent I recognise—I think that we all do—the justness of Alison McInnes’s argument, the practical implications mean that although we can deal with section 41(1A) of the Police (Scotland) Act 1967 on charges because we have volume, crime and a beneficiary, for the other offences we have limited numbers and we do not know who we are dealing with or to whom we would send the compensation—that is even before we consider the costs that we would impose on organisations to administer the fund.
I invite the committee to reject Alison McInnes’s amendments.
I have listened to the minister’s response. It does not seem to me to be beyond the wit of man to find out whether there are union or benevolent funds. That could be done. It is divisive and inequitable to single out the police. I will press amendments 70 and 72, which would extend restitution orders to the Ambulance Service and members of the fire brigade. I will not press amendments 71 and 73.
You have moved only one amendment; you are pressing amendment 70. We will deal with the others as we reach them.
The question is, that amendment 70 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 70 disagreed to.
Amendment 71 not moved.
Amendment 33, in the name of the cabinet secretary, is grouped with amendments 34 to 38, 42, 90 and 43 to 47.
Amendments 33 and 35 to 37 are technical drafting amendments relating to the terminology that is used in reference to operation of the restitution fund. They have been lodged in order to clarify that the Scottish ministers have the power to administer the fund, which they may delegate, and that they may make provision by order for the fund’s administration.
The operation of the restitution fund—which will receive money that is raised from restitution orders that are imposed for police assault, and will disburse them to the designated recipients—will necessarily involve administrative expenses. Amendment 34 will ensure that those expenses may be defrayed from the fund by adding the Scottish ministers and those administering the fund to the persons to whom payments may be made out of the fund.
Amendments 38 and 43, 45 and 46 are mostly technical amendments to the subordinate legislation-making powers relating to the victims surcharge; they will slightly alter the terminology. As with my amendments on the restitution fund, the amendments clarify that the Scottish ministers have the power to administer the fund, which they may delegate, and that they may make provision for the fund’s administration.
Amendment 46 will also remove the reference in new section 253G(6) of the Criminal Procedures (Scotland) Act 1995 to the regulation-making power being used and, in particular, to make provisions specifying persons or classes of person to whom, or in respect of whom, payments may be made out of the fund. I consider that the restrictions in the bill relating to the persons to whom payments can be made are sufficient and that such provisions are therefore highly unlikely to be made.
As with the restitution fund, the operator of the victim surcharge fund will inevitably incur administrative costs. It would be unreasonable to expect the operator to bear the cost of administering the fund himself. Amendment 42 therefore provides that operational expenses may be taken from the fund. Where administration of the fund is delegated to a third party—which is our intention—the Scottish ministers must consent to such expenses being taken from the fund.
Amendments 44 and 47 are minor technical amendments that will allow subordinate legislation under proposed new sections 253F and 253G of the 1995 act to be made in a single instrument.
Amendment 90, in the name of Graeme Pearson, seeks to prevent the victim surcharge fund from being used to supplement or replace other payments that are made out of the Scottish consolidated fund. As I have stated previously, the victim surcharge fund is being established for the specific purpose of providing immediate and practical assistance to victims of crime; it is not intended to be used to replace the current or future Government funding of victim support services. Indeed, it is our intention to delegate administration of the fund to Victim Support Scotland and for it to distribute funds as appropriate, with the Scottish Government having no role in the day-to-day operation of the fund. In those circumstances, payments out of the fund would be made not by the Scottish ministers but by the operator to whom administration of the fund has been delegated. Amendment 90 would be of no effect in those circumstances, because the operator will have no say on how or to whom payments are made out of the Scottish consolidated fund.
In addition, the Scottish ministers currently support a number of victims organisations through payments from the consolidated fund. Amendment 90 could have the effect of preventing payments being made to those organisations from the victim surcharge fund, because they could be seen as supplementary payments to those that were being made from the consolidated fund. There is also a risk that the inclusion of such a provision in the bill would create an implication that the absence of such a provision elsewhere in the bill or other statutes would mean that funds such as the victim surcharge fund could be used to relieve the pressure on the Scottish consolidated fund. I therefore consider amendment 90 to be completely unnecessary, and I ask Graeme Pearson not to move it.
I move amendment 33.
So, Graeme Pearson’s amendment is “completely unnecessary”. That is his cue to speak to amendment 90 and the other amendments in the group.
Amendment 90 has achieved its desired effect—it would be best described as a probing amendment. I was seeking to achieve assurances from the cabinet secretary that the proposed measures are not a means of siphoning funds into mainstream Government budgets. I accept the assurances that the cabinet secretary has given the committee in that regard. It would be helpful if the cabinet secretary could, in concluding—
He has concluded.
In his response.
You are winding up, eventually.
I beg your pardon—the cabinet secretary has not concluded.
Amendment 46 aims to ensure that future changes to maintenance and to eligibility for payment from the fund are dealt with under negative procedure. I ask the cabinet secretary to explain why he proposed the use of negative procedure.
I have no comment on the other amendments in the group.
Does anyone else wish to contribute? If not, then the cabinet secretary may wind up.
Convener?
I beg your pardon, Elaine. I could not see you—you are out of my sights. You will have to poke me.
Do not tempt me.
I have some comments about amendment 34. Scottish Women’s Aid, or one of the other victims organisations, had raised some concerns about the amendment. I am not necessarily disagreeing with the amendment, but I would like a little bit of clarification about it. The aim is to ensure that the fund washes its own face, as it were. Is it correct that there are no implications of the amendment greater than ensuring that the fund supports itself?
The cabinet secretary now gets to wind up.
I can give assurances to both Graeme Pearson and Elaine Murray. There is no hidden agenda; the negative procedure is being used because that is normal and standard for such matters. If there was anything untoward in that, the Delegated Powers and Law Reform Committee would have been in touch. What we have proposed is simply the normal procedure.
I can also confirm to Elaine Murray that the provisions are to deal with matters that we perhaps cannot envisage, although there may be some cost involved. There is certainly no intention that we, or anybody acting on our behalf, would seek to view the fund as a cash cow.
10:00
We want the money that has been taken from people who have offended to go to the victims of the offence, and we are working with Victim Support Scotland because it is the best organisation to deal with this matter. We are also aware that victims need money immediately; after all, although money can be allocated from Victim Support’s fund, people who make criminal injuries compensation claims tend to receive the money two and a half years after the claim was instigated and perhaps three and a half years after the offence. The measure is about giving a pot of money to Victim Support for the people who need it. I remember being at a meeting of a previous justice committee at which Margaret Smith highlighted the case of a constituent who did not live in a council house and so had to pay for the blood of her son to be cleaned up because there was no provision for that. There is something manifestly wrong in such situations, so we have to resource the likes of Victim Support Scotland.
Amendment 33 agreed to.
Amendment 72 moved—[Alison McInnes].
The question is, that amendment 72 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 72 disagreed to.
Amendment 73 not moved.
Amendments 34 to 37 moved—[Kenny MacAskill]—and agreed to.
Section 21, as amended, agreed to.
Section 22—Victim surcharge
The next group of amendments is on victim surcharge fund: eligibility. Amendment 87, in the name of Margaret Mitchell, is grouped with amendments 88 and 89.
Amendments 87 to 89 seek to make the victim surcharge applicable to all offenders, rather than being implemented in the kind of piecemeal way that the Government has proposed. Section 22 requires the court to impose a victim surcharge on offenders in certain circumstances to be set out in secondary legislation, and the funds raised through the surcharge will go into a central victim surcharge fund to provide practical assistance and support to victims who have immediate and unmet needs.
The surcharge is a good idea that is supported by victims organisations and which already operates in England, Wales and Northern Ireland. However, the Scottish Government could and should be more ambitious. It has made it clear that, in the first instance, the surcharge will be imposed only in cases relating to court fines, but that means that individuals who have been convicted of motoring offences will have to contribute to a fund that is designed to help victims, while rapists, murderers and violent criminals will not be asked to pay anything. That strikes me as a lost opportunity, not to mention a bit of a travesty of justice.
The victim surcharge has been in force in England and Wales since 2007 and, since last year, applies to all forms of sentences, including custodial, community and suspended sentences. Given that the experience of implementing the surcharge south of the border has been good, I see no reason why the Government should delay in rolling it out and ensuring that it applies to more serious criminals as a matter of priority. Amendments 88 and 89 are consequential.
I move amendment 87.
I am slightly confused by these amendments, although that might be because I do not have sufficient understanding of how the surcharge works in England. I was not aware, for example, that it applied to all offences. If someone nicks something out of a supermarket, does the supermarket get some sort of compensation? Equally, does someone who offends against the state automatically have to pay a surcharge to the state as victim? I am therefore slightly confused about the intention behind the amendment and how it would apply in very minor crimes and so on.
Like Elaine Murray, I am a bit confused about that position. I am not sure that these amendments would give much flexibility, so I am inclined to resist them.
I welcome Margaret Mitchell’s support for the introduction of a victim surcharge, but I am concerned that amendments 87, 88 and 89 would remove the flexibility for us to test the waters in relation to how the surcharge is applied, which should react to changing circumstances. The provisions on the victim surcharge have been purposely designed to allow us to apply the surcharge in the first instance only to cases that result in a court fine. However, through the very powers that Margaret Mitchell wishes to remove, we will be able to extend the surcharge to apply to other types of sentence in the future, if appropriate. That phased approach will allow the scheme to bed in and its successes to be evaluated before any extension to incorporate other sentences.
It is difficult to describe now the exact circumstances in which we might wish further to restrict the application of the surcharge—for instance, in respect of particular offences—until it has been put in place. However, the powers in section 22 provide us with the flexibility to react to any issues that might arise or to the creation of new offences or changes to criminal procedure. I have particular concerns about the effect of amendment 88, because what it proposes would mean that a conviction would be all that would be needed for a victim surcharge to be imposed, even if no sentence was given to the offender; an offender who was admonished would therefore have to pay a victim surcharge. I think that that is a step too far. Further, the administration of a scheme that had to cover every conviction, regardless of sentence, would be complex, to say the least.
The powers in section 22 allowing Scottish ministers to prescribe offences, sentences and circumstances to which the victim surcharge is not applied were included for a specific reason: to provide us with the flexibility to take a measured and sensible approach to implementing the surcharge in the first instance and to enable us to respond to the evolving nature of the criminal justice system in the future—I think that Elaine Murray touched on that. I therefore urge Margaret Mitchell to withdraw amendment 87 and not to move amendments 88 and 89. I give her the assurance that, whether it is done by me or by a successor justice secretary, some of the points that she has raised will be considered once we have bedded in the scheme.
I am content to leave amendment 87 as a probing amendment at this stage, with the proviso that what it proposes can be looked at again at stage 3, because there is an important point of principle here. I therefore seek to withdraw amendment 87.
Amendment 87, by agreement, withdrawn.
Amendments 88 and 89 not moved.
Amendments 38 to 42 moved—[Kenny MacAskill]—and agreed to.
Amendment 90 not moved.
Amendments 43 to 47, 49, 48, 50 and 51 moved—[Kenny MacAskill]—and agreed to.
The next group is on the victim surcharge fund. Amendment 91, in the name of Graeme Pearson, is the only amendment in the group.
Amendment 91, which I hope is a reasonable amendment, proposes the creation of a report, instigated by Scottish ministers or such persons as they have delegated, which should be completed by the end of the 12-month period following the establishment of the fund, and thereafter as soon as practicable after each subsequent period of 12 months. The report will include information on
“the sum paid into the fund”
and
“the sum still due to be paid into the fund by persons who the court has ordered to make payment of a victim surcharge ... a list of those persons ordered to make payment of a victim surcharge who are yet to make that payment .. the sum paid out of the fund”
and
“an account and assessment of how the sum paid out of the fund has been used.”
I think that the general public would be keen to know how such a surcharge fund had developed and what benefits had been achieved in connection with it. Equally, a list of those persons who had yet to make their payment would provide a useful encouragement for those who might otherwise avoid paying the surcharge as ordered by the court.
I move amendment 91.
I welcome the general principle behind amendment 91 and agree that there should be transparency and accountability in the administration of the victim surcharge fund. Members of the committee will note that the draft regulations relating to the surcharge, which I supplied last week, include provision for the making of quarterly reports to the Scottish ministers. Those reports will include some of the information that Graeme Pearson’s amendment mentions, such as the payments that are made into and out of the fund and an indication of how that money has been used. The regulations will not be finalised for some months, and I am happy to consider any suggestions from Graeme Pearson or other members as to what else might usefully be covered in reports from the operator of the fund.
Indeed, discussions are on-going between my officials and VSS—to which we intend to delegate the fund’s administration—with regard to what further detail may be necessary. I am happy to consider whether such reports should be published; although that was not specified in the draft regulations, it is a sensible suggestion.
However, I consider that such matters are best covered in regulations rather than in the text of the bill. Section 22 sets out the broad parameters of the fund and leaves the administrative details to subordinate legislation, which will enable more flexibility and allow the detailed operation of the fund to be more easily altered in the light of experience. I see no reason to alter that approach in relation to reporting requirements.
I have specific concerns about some of the areas that amendment 91 says are to be reported on, particularly the requirement under proposed section 22(3)(c) to list those persons who are ordered to make payments of a victim surcharge and are yet to make that payment. It is common practice that those who have been fined and will be subject to a victim surcharge are able to make payments by instalments. At what point would it be considered appropriate that they be included in a list?
There will also be cases in which someone is in arrears for a short period of time but quickly makes up those arrears. The requirement would put a fairly onerous burden on the Scottish Court Service, and all to compile a snapshot that may not be representative of the overall success in collecting the surcharge.
Finally, I have concerns that the publication of the names of individuals who have committed offences and are still to pay into the victim surcharge fund could have significant implications for the rights of the offender under article 8 of the European convention on human rights.
In summary, I support the intention behind amendment 91 but feel that the area would be more appropriately covered in subordinate legislation. I invite Graeme Pearson to withdraw amendment 91, with my assurance that I am happy to consult him and others further on what should be covered in regulations relating to the victim surcharge, and to consider his suggestion that reports be published regularly to ensure transparency in the administration of the fund.
I have heard everything that the cabinet secretary has to say with regard to amendment 91. I am pleased that he is happy to discuss further the intentions behind the amendment and, as a result, I will seek to withdraw it.
Amendment 91, by agreement, withdrawn.
Section 22, as amended, agreed to.
Section 23—Victim’s right to receive information about release of offender etc
Amendment 92, in the name of Margaret Mitchell, is grouped with amendments 93 and 94.
Prior to the stage 1 debate, the Sunday Post ran an article reporting that sex offenders who had been placed on the register for life but who now, as a result of a United Kingdom Supreme Court decision, have a right to challenge that were being taken off the sex offenders register without their victims being informed.
The bill already gives victims of offenders who are sentenced to 18 months or more in prison the right to receive information relating to the release of the offender. Amendment 92 explicitly states that victims of sex offenders are able to receive information about the release of an offender who was subject to an indefinite period of notification but who is so no longer as a result of appeal or review.
Section 24 establishes a new right to allow the victims of persons who are given life sentences to make oral representation before the person is released on licence.
I move amendment 92.
10:15
Amendment 93 seeks to ensure that, at the time of sentencing in the courts, victims and their families are made aware of the earliest date of release for the prisoner.
Evidence from victims and witnesses at stage 1 indicated the confusion that they faced when they heard an accused being sentenced to a period of imprisonment but learned later that week or later in the process that a formula was open to the prisoner that allowed discount and changed what the victim understood to be the earliest date of release to a much earlier time. There is no doubt from the evidence that I have heard and the approaches that have been made to me during consideration of the bill that victims and witnesses would value knowing on the date of sentence what the earliest date of release would be. It would not be beyond the courts’ power to identify that date, as the prisoner receives it when he enters the prison system later the same day.
Amendment 94 would require the Scottish ministers to provide a minimum period before the release of a prisoner by which a family must be notified of the release. That particularly pertains to those who have been involved in the victim notification scheme. Under that scheme, a letter can often arrive unannounced on a doorstep indicating that a prisoner is being released that day or has been released days before. That has an impact on victims and their families by taking them right back to the original crime and increasing the stress and anxieties that they face.
Amendment 94 seeks to bring some humanity into the process and to empower victims and their families as they seek to play their part in the justice system.
I have no comment to make on amendment 92.
I will listen to what the cabinet secretary has to say, but I have considerable sympathy for all three amendments in the group.
All of us who have worked over the years with constituents who have been victims of crime have heard distressing stories about how victims sometimes find out through Facebook that someone is out on parole, as happened to one constituent of mine. In another case, a woman whose young daughter had been sexually abused came round the corner to see her daughter’s abuser in the street in front of her. Equally, it is extremely distressing for victims of serious sexual offences not to be advised that somebody is no longer on the sex offenders register.
It feels right that victims should be kept informed when decisions of that type are taken. Indeed, victims should be informed about when somebody is likely to get out rather than believing that the offender has a 10-year sentence and finding that they are out a lot sooner than that without the victim and their family knowing at the time.
Do any other members want to comment? I do not know whether Roderick Campbell wants in. He made a little flicker of the hand. It is so subtle.
I am a wee bit confused by it now, so I will leave it to others to comment.
I should not have identified Roderick. He is confused.
Cabinet secretary, please deconfuse Mr Campbell, if there is such a word. That would be handy.
Amendment 92 seeks to amend section 16 of the Criminal Justice (Scotland) Act 2003, which established the system whereby victims can, on request, receive information about the relevant offender. That system is known as the victim notification scheme and applies in relation to offenders who have been sentenced to imprisonment for 18 months or more and in relation to certain sentences imposed on those under the age of 18.
Amendment 92 would extend the categories of prisoner to whom the VNS applies by including prisoners who were given a prison sentence of any length and had previously been subject to an indefinite notification period under the Sexual Offences Act 2003 but had been discharged from that notification period.
There are a number of issues with the amendment. First, it is worded so as to include all persons sentenced to a period of imprisonment or detention who have, at any time, been subject to an indefinite notification period under the Sexual Offences Act 2003 but are no longer subject to it. There is no requirement for the notification period from which the offender has been discharged to be linked to the offence for which the offender is currently imprisoned. It may be that the victim who is seeking information about the offender would be eligible to receive that information due to the fact that the offender has at some time in the past been subject to a notification period imposed for a completely unrelated offence. That seems hard to justify. Why should the victim of an assault be entitled to information about the offender purely because they have a previous conviction for a sexual offence, while other victims of assault would have no such entitlement solely because of their assailant’s differing criminal history?
Secondly, the amendment requires that the offender must have been subject to an indefinite notification period under the Sexual Offences Act 2003. If the intention behind the amendment is to ensure that victims of this category of offender are automatically eligible for the VNS, it appears to be unnecessary. Indefinite notification periods are imposed where an offender has been convicted of a sexual offence and is sentenced to imprisonment for 30 months or more, given an order for lifelong restriction or admitted to hospital under a restriction order for the offence. Accordingly, it is unlikely that any offender who is subject to an indefinite notification period under the Sexual Offences Act 2003 would not be caught by section 16 of the Criminal Justice (Scotland) Act 2003, as all offenders serving sentences of 18 months or more are included by virtue of section 16(1)(a) of that act.
Amendment 93 raises a number of practical questions. To provide clear information to victims about the release of offenders and to ensure transparency in sentencing more generally are worthy aims. However, at the point of sentencing, it will not always be immediately apparent when the offender in question will be eligible for release. For example, some offenders will be eligible for release at the Scottish ministers’ discretion on home detention curfew before the halfway stage, and some will be eligible for release on Parole Board recommendation at the halfway stage. Also, some prisoners will need to have their time on remand taken into account before a date of release can be calculated. In most cases where prisoners are serving multiple prison sentences, all the sentences will require to be considered before their date of release is calculated. The system of sentencing can therefore be seen as complex.
Under current arrangements, it is the Scottish Prison Service that calculates the earliest release date for offenders who receive custodial sentences. It does so as offenders are taken into custody following sentence being imposed. Putting in place arrangements that would allow the information to be available at the point of sentence would require the establishment of new processes, which would inevitably have cost implications. At a time of scarce resources, I am not persuaded that establishing a new mechanism to allow this information to be available at the point of sentence would be a sensible or necessary step, so long as we can ensure that the information that is currently provided through the VNS is delivered effectively and timeously.
Members will be aware that we have legislated for a Scottish sentencing council, and one member of the council will represent the views of victims. We are working with the judiciary to establish a sentencing council in the current session of Parliament, and it will be ideally placed to consider and make specific recommendations on how victims understand the impact of individual sentences on offenders, including when individual offenders are first to be considered for early release.
As I have said, the VNS is long established and it allows victims to receive information about release dates. I consider that it is preferable to ensure that the information that is currently available to victims, including notification of the date on which the prisoner is released, continues to be provided consistently and accurately through existing processes without any additional costs arising. In addition, the sentencing council could consider looking at this general area as part of its work programme to assess whether the additional costs of introducing a system would be justified.
Amendment 94, which is also in the name of Graeme Pearson, seeks to set a minimum period for notifying victims before a convicted person is released. At present, when a victim registers on the VNS, the Scottish Prison Service informs them of various critical dates including the earliest date of release. Victims can also make representations under section 17 of the 2003 act if a prisoner is being considered for release on licence. That enables victims to inform the Scottish ministers and, where appropriate, the Parole Board of any concerns with regard to the release of the prisoner and allows the potential impact on the victim to be considered when licence conditions are set.
Victims who are registered on the VNS are contacted about six months before a prisoner is eligible for release and are invited to make written representations. The minimum sentence threshold for registering on the VNS is 18 months, although I have already expressed my intention to lower it further using existing order-making powers.
There will be cases in which the victim registers on the VNS but the prisoner is released fairly quickly because, for example, of the time they spent on remand. Given the vast range of sentence lengths, it makes little sense to set an arbitrary minimum period by which point a victim must be informed of release. I consider, therefore, that the matter is better dealt with administratively through the VNS and am open to considering any improvements that might be made through that route. As the changes in the bill as drafted will ensure that more victims are eligible to register on the VNS, I consider the amendments in question to be unnecessary and invite Margaret Mitchell to withdraw amendment 92 and Graeme Pearson not to move amendments 93 and 94.
I am disappointed that the cabinet secretary has not even suggested that there be further discussion on how we can make the victims of sex offenders aware that someone is being released earlier and, indeed, make them a special category. There are ways in which amendment 92 could be improved, but I would hope that the cabinet secretary would seek to work with me on whether an amendment covering the victims of sex offenders could be brought forward.
I am always happy to work to improve the scheme. Indeed, I have experienced some of the examples that Elaine Murray highlighted. Sometimes these things happen because people get compassionate release to see, say, a loved one who might be dying and those sorts of events cannot be indicated through the scheme. Certain aspects have to be improved; the principle, however, is that we should seek to improve the VNS and I am happy to engage with Margaret Mitchell on that matter.
Amendment 92, by agreement, withdrawn.
Amendment 93 moved—[Graeme Pearson].
The question is, that amendment 93 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 93 disagreed to.
Amendment 52 moved—[Kenny MacAskill]—and agreed to.
Amendment 94 moved—[Graeme Pearson].
The question is, that amendment 94 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 94 disagreed to.
Section 23, as amended, agreed to.
Section 24—Life prisoners: victim’s right to make oral representations before release on licence
Amendment 95, in the name of Graeme Pearson, is grouped with amendments 96 to 100.
Amendment 95 and the other amendments in the group seek to ensure that the victim’s emotions and needs are taken into consideration when offenders are considered for release. Amendment 95 seeks to allow all victims of serious crime and those who fall under the victim notification scheme an opportunity to make an oral representation when it comes to considering offenders for release.
Amendment 96, in the name of Margaret Mitchell, seeks to extend the right to make oral representation to victims of sex offenders; however, if the committee were minded to support amendment 95, amendment 96 would fall.
Not according to my script, Mr Pearson. You might know better than me, but I suspect not.
We will let the thing roll, convener.
How very kind.
Amendment 97 seeks to give victims the opportunity to give oral representation directly to the offender via videolink ahead of release if they so wish. However, that would apply only in cases of life imprisonment if amendment 95 is not agreed to. As I understand it, victims are allowed to make oral representations only to an independent member of the Parole Board, who then reports the outcome of that remote representation to the board; however, victims see that as a hurdle in getting their views heard at first hand. Amendment 98 seeks to give the victim the opportunity to make oral representation to the offender and would apply only in cases of life imprisonment. Amendment 99 is technical in nature and relates to amendment 97, and amendment 100, which is also technical, is linked to amendment 95.
I move amendment 95.
10:30
Amendment 96 provides that, in cases where a registered sex offender who is or has been subject to an indefinite notification period under the Sexual Offences Act 2003 is eligible for release, the victim can make oral representation to the Parole Board when the life registration is challenged or comes up for review. Basically, the amendment seeks to achieve parity between victims of sexual offences and victims of other serious crime, as there appears to be no good reason why victims of sexual offences should be overlooked in the bill. There is an opportunity here to strengthen the bill. The need for that was highlighted recently in the figures in the “Scottish Policing Performance Framework—Annual Report 2012-13”, which show that there are now 3,314 registered sex offenders in Scotland.
As with the previous group, I have considerable sympathy with the amendments in this group. We all appreciate that victims of serious crime may themselves serve a very long sentence, so it is appropriate that their feelings and rights are taken into consideration when the perpetrators of such crimes are considered for release.
As with the previous amendments that we discussed, there seems to be a difference of view between those who would opt for a big-bang approach and those of us who would see how things operate before extending the scheme. Under the bill as drafted, the right to make oral representations will apply only to the victims of life prisoners. I tend to the view that we should see how that works before considering whether to extend it further.
Amendments 95 and 100, in the name of Graeme Pearson, seek to make significant changes to the right to make oral representations to the Parole Board, which is covered in section 24 of the bill. The amendments would remove any restriction on the categories of victims who could make oral representations and would allow that option for all those who can currently make written representations.
The approach taken in section 24 of the bill is to enable oral representations to be made only by victims of life sentence prisoners in the first instance, but the bill includes an order-making power to allow that to be extended to other categories of prisoner, if appropriate, in future. Life sentence cases have been selected initially to reflect the higher likelihood that victims of such prisoners will wish to make representations and to allow the system to bed in before consideration is given to whether it should be extended. Once the uptake and effectiveness of oral representations in life prisoner cases have been evaluated, proper consideration can be given to the inclusion of other categories.
The Parole Board currently has 28 members and deals with approximately 800 cases every year. The provisions in the bill require that a member of the Parole Board who is not involved in the tribunal hears the oral representations. Therefore, it is not difficult to see that extending the right to all victims immediately would most likely render the proposed scheme unworkable and unmanageable within current budgets and staffing levels. I consider that it would be far more sensible to introduce the right to make oral representations using a phased approach, as that would allow for operational problems to be identified and rectified and for the feasibility and desirability of extending the scheme to be considered properly.
Amendment 96, in the name of Margaret Mitchell, would allow victims to make representations about release in cases where a prisoner has been subject at any time to an indefinite notification period under the Sexual Offences Act 2003. I consider that the amendment is too far reaching. It is questionable whether, for example, a victim of an assault should be able to make representations about a prisoner based on a previous offence that had nothing to do with the victim making the representations. Why should victims who have suffered exactly the same harm be treated differently with respect to the representations that they can make simply because one of the offenders committed an unrelated crime previously? As I have said, I am happy to consider extending the availability of oral representations in due course, but we must ensure that any extension is appropriate and workable and that the scheme has had a chance to establish itself first.
Amendments 97, 98 and 99, in the name of Graeme Pearson, would allow victims to make oral representations about release and licence conditions directly to the prisoner via videolink, although it is not clear at what stage in the process that would be done. I consider that proposal to be flawed. The prisoner has no involvement in decisions about his release and any licence conditions that may be attached, so what purpose would there be in the victim speaking directly to the offender about such matters? Furthermore, I fail to see what benefit that would have for the victim. Indeed, it may be counterproductive, giving the victim unrealistic expectations about what could be achieved through such a process, and could prove to be a traumatic experience, to say the least.
Decisions on release and licence conditions are rightly made by the Parole Board, taking into consideration all the reports on the prisoner’s conduct and progress. The victim is invited to make representations to the Parole Board about the release and possible licence conditions, and the bill will extend that to include oral representations for life sentence prisoners.
The prisoner already sees—and will continue to see—the representations that are made by the victim, unless there is good reason to withhold those from them. The amendments will add nothing to the effectiveness of the parole process. The Parole Board’s primary concern is to consider the risk of releasing a prisoner, and that risk is best assessed by considering relevant representations by the victim to the Parole Board, alongside other reports on the prisoner that have been prepared.
I therefore urge Graeme Pearson to withdraw amendment 95, and not to move amendments 97 to 100. I invite Margaret Mitchell not to move amendment 96.
I have heard all that the cabinet secretary has to say on the issues, and I am not persuaded by his arguments. We should be seeking to place the victim at the heart of the system and giving them an opportunity to feel that they count and have some say in the way in which justice plays out.
The reason for suggesting that the victim should be able to give oral evidence directly is that any submission from a victim in those circumstances would, rightly, be played out to the prisoner’s knowledge. The prisoner should be aware of what is being considered by the Parole Board in making a decision. Any videolink would be viewed by the prisoner in the presence of the Parole Board, which would highlight the openness of the process.
I understand the challenges that such a change in culture would deliver, but there would be a dramatic improvement from the victim’s point of view. The evidence that we heard from victims in committee, and in the representations that have been made to me since those evidence sessions, suggests that such a change would be a big and very positive improvement to the system.
I press amendment 95.
The question is, that amendment 95 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
McInnes, Alison (North East Scotland) (LD)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 95 disagreed to.
Amendment 96 not moved.
Amendment 97 moved—[Graeme Pearson].
The question is, that amendment 97 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
McInnes, Alison (North East Scotland) (LD)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 97 disagreed to.
Amendment 98 moved—[Graeme Pearson].
The question is, that amendment 98 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
McInnes, Alison (North East Scotland) (LD)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 98 disagreed to.
Amendments 99 and 100 not moved.
Section 24 agreed to.
Section 25—Temporary release: victim’s right to make representations
Amendment 53 moved—[Kenny MacAskill]—and agreed to.
Section 25, as amended, agreed to.
After section 25
Amendment 101, in the name of Graeme Pearson, is in a group on its own.
Amendment 101 relates to section 25 on “Temporary release: victim’s right to make representations”. It seeks to create an opportunity for victims to indicate the means by which they receive intimation of any proposal for temporary release of a designated prisoner. It provides that
“Any communication providing information by a relevant person to a person who is or appears to be a victim or witness in relation to a criminal investigation or criminal proceedings must be in such form as the person reasonably requires”,
and it outlines the detail of how that requirement can be delivered.
Amendment 101 seeks to create an opportunity for the system to communicate with the victim or the victim’s family in a more compassionate way through a means that can be intimated by them at the outset of the process.
I move amendment 101.
I thank Graeme Pearson for raising the issue. I think that we would all agree that information should be provided to victims and witnesses in a format that suits their needs and in appropriate language that they can understand.
In its stage 1 report, the committee suggested that criminal justice organisations must
“take better care to ensure that the written information they provide to victims and witnesses is in plain English.”
In my response, I agreed with that view and advised the committee that I would be happy to work with our justice partners to improve the language that is used in communications.
However, amendment 101 goes considerably further than that by requiring the police, prosecutors and others to communicate in whatever form is reasonably required by a victim or witness, and to take steps to determine the preferred form of communication, presumably prior to the substantive communication.
Although that is a laudable aim, it strikes me that imposing such a strict statutory duty would be fairly impractical and could have potentially significant resource implications. Making a phone call to a victim might be viewed as a reasonable requirement under subsection (1) of the section that amendment 101 seeks to insert and, in many cases, I agree that that would be a reasonable requirement, but it would put a significant burden on any organisation if a high volume of correspondence suddenly had to be dealt with by phone or in face-to-face meetings, if such meetings were requested. The proposed obligation to seek the views of victims and witnesses before communicating with them, regardless of how routine the information that is to be provided is, seems unworkable in practice.
I believe that better training and guidance for those involved would be a more appropriate way of improving communication with victims and witnesses than an impractical statutory obligation. We are already working with organisations from across the justice system, including those mentioned in amendment 101, to look at the victim’s journey through the system and how it might be improved through effective implementation of the proposals in the bill and other practical measures. I see the improvement of communications as being part of that wider work. In particular, I would expect it to be considered when organisations develop their standards of service under section 2 of the bill.
Therefore, I urge Graeme Pearson to withdraw amendment 101. I give a commitment that the Scottish Government will continue to work with our justice partners in the area to ensure that any information that is provided to victims and witnesses is clear and easy to understand.
I welcome the fact that the cabinet secretary seeks to improve the current arrangements, but the evidence that the committee received suggests that an amendment such as amendment 101 is required. I received evidence from a member of the public in the north-east who indicated that in her case, many years after the offender’s conviction, she received—cold—a letter that took her right back to grade 1. Because the letter intimated the detail of what was to happen in technical language, it took her some days to find out what it meant under the current arrangements and how it applied.
Amendment 101 seeks to place an onus on the relevant services to ensure that they understand the needs of victims who are registered for notification and that they provide such notification by suitable means, whether that is by email, by telephone, by notifying Victim Support or by a letter, if that is what the victim seeks. My amendment would open up the door to a more humane approach to re-engaging with a victim when the circumstance arises.
I press amendment 101.
The question is, that amendment 101 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 101 disagreed to.
Sections 28 and 29 agreed to.
Section 30—Commencement
10:45
Amendment 54, in the name of the cabinet secretary, is in a group on its own.
Amendment 54 relates to the provisions in the bill establishing a national confidential forum. While the relevant sections on that were scrutinised separately by the Health and Sport Committee on 5 November, an amendment is necessary to section 30, which this committee is considering, as it affects commencement of the bill as a whole, hence the need to address this today.
The amendment arises from concerns expressed by survivors and other stakeholders in the consultation on the national confidential forum provisions of the bill at stage 1 about the need for the forum to begin work as quickly as possible. The Scottish ministers are also very keen for that to happen, particularly so that older and ill survivors and other former residents are given the opportunity to participate in the forum.
Amendment 54 will enable the appointments process to begin directly after royal assent. The committee will be aware that there is a convention that commencement should not take place until at least two months after royal assent. Therefore, the usual timing would make it unlikely that the NCF could begin to hear the testimonies of survivors and other former residents until 2015, given the time taken for the public appointments process to run its course. Early commencement, on the other hand, would enable the NCF to begin hearings in 2014.
The Scottish Government has considered carefully whether early commencement would adversely affect the rights of any individual or groups of individuals. Our conclusion is that survivors and other former residents will benefit from early commencement and no other parties will suffer a detriment as a result.
I move amendment 54.
I am pleased about the amendment. Having listened to evidence many years ago, we now have a national confidential forum and we are moving even further. It will be excellent if the forum goes forward as quickly as possible.
Amendment 54 agreed to.
Section 30, as amended, agreed to.
Section 31 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. With a large sigh of relief, I thank the cabinet secretary and his officials and the committee. I suspend the meeting until 11.
10:47
Meeting suspended.
10:59
On resuming—