Justice Committee, 20 Jan 2009

Meeting date: Tuesday, January 20, 2009

Official Report 245KB pdf

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Offences (Aggravation by Prejudice) (Scotland) Bill: Stage 1

Good morning, ladies and gentlemen. I remind everyone to switch off mobile phones. We have received apologies from Cathie Craigie MSP.

Today's meeting is the second formal evidence-taking meeting on the Offences (Aggravation by Prejudice) (Scotland) Bill. On the first panel, sitting in splendid isolation, is Euan Page, who is the parliamentary and government affairs manager for the Equality and Human Rights Commission. We move straight to questions. Bill Butler will open.

Good morning, Mr Page. In your written evidence, you state:

"LGBT and disabled people are significantly more likely to be targets of various types of crime, including harassment, abuse and assaults".

How will the provisions in the bill help to address that situation?

The bill will do that in a number of ways. The thinking behind statutory aggravation is that it requires—over and above the flexibility and the provisions in the common law—a necessary response from the various actors in the criminal justice process: the police, the Crown Office and Procurator Fiscal Service and the courts. It gives weight to a particular type of criminal offence and concentrates minds in the police, the prosecutors and the judiciary.

The seriousness that aggravation lends to the type of offences that we are talking about in relation to the bill feeds through to give the victims of such crimes the confidence that they will get an adequate response from the criminal justice system. It is, importantly, a useful tool in mapping patterns of offending behaviour, whether that involves dealing with particular hotspots—as was mentioned during last week's evidence—or with individuals.

If someone repeatedly comes up before the court for minor public order offences with aggravating factors, we can begin to identify patterns of behaviour that might require an intervention such as an altered sentence or an increased tariff. However, the other important point is that the approach gives people in the criminal justice social work sector the evidence that they need to tailor interventions better to get to the root of an individual's behaviour.

Are you saying that the bill will, in addition to concentrating minds and tracking trends in offending behaviour, help with the rehabilitation of offenders?

Absolutely. It will help not only with rehabilitation but with early identification of patterns of offending behaviour. Such behaviour being addressed earlier can lead to better outcomes for offenders and victims.

Do you know of any other legislation that supports rehabilitation and aids offenders in that way?

The approach might not be appropriate in all circumstances, but there is evidence that, for certain offenders who have been prosecuted for less serious offences with an element of homophobic aggravation, courts have used the homophobic aggravation offence that is set out in the Criminal Justice Act 2003 to pass sentences involving work with or for lesbian, gay, bisexual and transgender organisations. In that way, they have sought to turn an individual around or to reorient the attitudes to sexuality that lie at the root of their offending behaviour.

How much of that evidence is there and what is the success rate of such an approach? Is it simply too early to say? Is all the evidence just indicative at the moment?

To the best of my knowledge, the evidence is indicative. I am sure that research on the subject has been carried out by people who are better qualified than I am to do so. However, this debate is very timely in Scotland and I am sure that the committee will be fully engaged in debates on addressing offending behaviour through more appropriate and imaginative sentencing. There is scope for tying our debate about statutory aggravations to that debate to ensure that we take into account not only punishment, which is obviously part of the mix, but rehabilitation. If we can address some of the root causes of an individual's offending behaviour, we can turn their life around and make society safer.

That is very clear. Thank you.

It could be argued that what you suggest could happen under the existing process. A social inquiry report, for example, might highlight an offender's difficulties so that he might, as a result, be put on probation on condition that he will undergo the type of counselling and attitude-changing processes to which you have referred.

That argument is perfectly valid and brings us back to the debate on the relative merits of common law versus statutory aggravations. A statutory aggravation ensures concentration of the minds of all the actors involved and inspires in victims the confidence to come forward. As we know, there is underreporting of certain classes of crime.

It would, of course, be theoretically possible to meet the bill's aims through common law. However, all the evidence suggests that that is not happening.

In your submission, you state:

"This type of targeted crime would also appear to have a more profound and lasting impact on the victim than other types of crime."

Will you elaborate on that comment?

The point is important, because we must not get caught up in a false debate over whether we are seeking to give greater weight to certain classes of offence based on a victim's identity. That is not what the bill will do.

Organisations such as Victim Support Scotland have responded to the bill at stage 1. All victims of crime must have their needs, concerns and reaction to the crime taken seriously—they need full support—but there is compelling evidence that when an individual is targeted by an offender because of who they are or what they represent, there can be an additional psychological impact that we must take into account in addition to the complex psychological responses that any victim of crime has.

Victims of violent crime often go through various stages in coming to terms with what happened. Part of that involves self-recrimination: they ask why they were so stupid, why they took a certain route home or why they did not get a taxi. That can lead to their altering their behaviour or being trepidatious about going out at night. Academic studies have suggested that the problems are compounded for victims of targeted crime, who can feel that there is nothing they can do to change who they are. They can change their behaviour or where they go out, but being attacked because of a core aspect of one's identity can present additional problems in coming to terms with being a victim.

So, you are saying that a specific trauma is associated with a victim being singled out rather than being just a random victim of crime.

Yes. Every victim's experience of crime is unique, but there can be a specific trauma.

I want to return to your comment that most of what the bill seeks to achieve could be dealt with under the common law, which does not seem to be working. Those are my words, not yours. Is the bill the right legislative way forward?

Yes, it is. However, it is important that we do not think about the bill in isolation. We are not talking about an all-or-nothing debate—a statutory aggravation is not the only way in which to deal with disability, homophobic and transphobic hate crime. It is one useful criminal justice response, but it must be placed in a mix of responses, some of which will be through the criminal law, some through the civil law and others through policy and attitudes in public authorities.

I am sure that you agree that the bill will send a message, but will it send the right message? Is there any way in which we could amend the bill to improve the message?

The bill has the virtues of brevity and great clarity. I am sure that that is not always the case with proposed legislation that comes before the committee—I am thinking ahead to the criminal justice and licensing bill, which will be a slightly more weighty document. It is important to send out a message, as witnesses at last week's meeting said. One consequence of the bill is that it will send out a message, but the Equality and Human Rights Commission does not support it primarily because it has that role. If we simply wanted to send out a message, there are other ways in which to do that, for example, by education or public awareness campaigns. We support the bill because it will provide an important extra dimension in criminal justice agencies' responses to particular types of targeted crime. As a consequence, it will undoubtedly reinforce messages about what constitutes civilised behaviour. However, sending out a message is not the paramount concern in making any change to the criminal law.

I will examine the purpose of the aggravation a little further. It is often helpful in such cases to consider what the mischief is and what the possible remedy would be. The convener touched on existing sentences of the court. Do you know of any research that shows that sheriffs do not take aggravations under the common law as seriously as they should? I appreciate that there is underreporting, but that is a slightly different issue.

I am anxious not to appear to be berating sheriffs for their responses. One can point to some slightly surprising instances or, rather, one can point to responses that have been given by sheriffs in cases where there has clearly been a homophobic element to a serious crime. For example, there was the homophobic murder of a man in Perth a couple of years ago. The sheriff mentioned that there may have been "a homophobic element" to the murder: the circumstances were that two young men murdered a man in a public park in Perth and were witnessed bragging about the murder at a party later that night, using explicitly homophobic language.

We can compare and contrast the response of the sheriff in that case, who made a slightly ambiguous statement about the possibility of "a homophobic element" to the murder—most of us would say that homophobia lay at the heart of that offence, its motivation and execution—with the response to the murder in England of Jody Dobrowski on Clapham common a few years ago, following the introduction of the Criminal Justice Act 2003, in which the judge explicitly referred to the convicted murderer having committed an act of "homophobic thuggery". I do not want to criticise sheriffs; it was right that the sheriff in Perth suggested that there was an "element" of homophobia, but an aggravation would have made the matter much more explicit from the start and would have allowed an opportunity to explore much more fully the motivation behind that offence.

I wish to explore that element of aggravation, on which you have started to give your views. Let us consider the high level, and a murder with either a disability or homophobia aspect to it. Would you expect there to be a higher minimum sentence in that situation? What would the purpose of the aggravation be for such a serious level of crime?

One of the virtues of the bill is that the purpose of the aggravation is determined by the seriousness of the offence. In the case of the most serious of all crimes—murder—we would consider the response of an increased tariff, to take account of the motivation for the murder, as was the case with the Clapham common murder, in which case two individuals went out with the express purpose of finding somebody who was gay, or whom they believed to be gay, in order to cause them serious harm.

The nature of the aggravation will differ with less serious offences. That goes back to the points that were discussed earlier about how we can use the bill as an effective intervention for dealing with offending behaviour.

I want to explore that further. That touches on the example of somebody committing breaches of the peace, with an element of the sort that we have been discussing attached. Prison might not be the obvious remedy in such cases, but something could perhaps be done to change the offender's attitudes. Do you have any information about the availability of rehabilitative arrangements—for example, anger management courses or courses that attempt to change people's attitudes and which might be relevant to such offences. Are facilities in place to allow the courts to do something effective with offenders at that level?

I return to the point about this being a timely discussion. If we in Scotland are to address in the round what we expect sentencing to achieve, this is exactly the time to have such a debate in order to ensure that provisions are in place to address offending behaviour appropriately. In the case of somebody who has committed a series of aggravated breaches of the peace, it will have become obvious that that person has an issue or problems with a particular social group. How can that be turned around effectively to stop that behaviour, thereby giving more confidence to other potential victims?

I would have to get back to you on whether particular facilities are available. However, the issue is perhaps more how we start to ask such questions as part of the policy debate in Scotland. The bill might offer a useful opportunity to explore such matters.

You referred to the Perth case, which you quite rightly described as an horrific crime. It is important to stress that the case was dealt with not in the sheriff court but in the High Court. Indeed, Lord Macphail, who was the sentencing judge, passed a fairly exemplary sentence.

That is absolutely right. I bow to your greater knowledge of the matter, convener. I did not mean any criticism; I was simply giving an example of a case in which the homophobic element was perhaps underplayed, given the remarks from the bench about such an element being a possibility.

The sentence was eloquent testimony to the seriousness with which the judge took the case.

Yes, indeed.

The committee has heard that underreporting of crimes is a particular issue for lesbian, gay, bisexual and transgender people and for disabled people. Will you elaborate on the reasons for that and explain how the situation would be improved if the bill were passed?

There is evidence of significant underreporting among all the groups who are affected by such crimes. In addition, much work has been done on how disabled people, particularly people with learning disabilities, internalise and come to accept as being part of their lived experience crimes that target them, which they cannot do anything about. Such an attitude has sometimes permeated organisations' responses to crimes.

That brings me back to what I said about the virtue of creating a statutory aggravation. If people have confidence that they and their concerns will be taken seriously, they will be much more likely to come forward to the police, which should create a virtuous circle. For example, after the Clapham common incident there was an upturn in complaints to the police down south about homophobic incidents because people had more confidence that the police, prosecutors and courts would take their concerns seriously.

The committee will take evidence from the Association of Chief Police Officers in Scotland later in the meeting. In its submission, ACPOS said that under the proposed new arrangements

"an individual person's perception of motivation for an offence will be sufficient for the aggravation to be competent."

Might the bill be used in a negative way? Could a person's perception be used to justify convicting someone of an aggravated offence although there was no aggravation?

Are you suggesting that victims might feel that there was aggravation or even that they might maliciously insist that there was aggravation?

Yes.

The trigger for the police to identify a crime as aggravated would be victim led, as is the case for statutory aggravations in general. Currently, if a person says that they have been the victim of a racist or sectarian incident, the police will regard the incident as such.

The wider point, which was picked up when the committee took evidence on the bill last week, is that given the nature of such offences it is possible to draw broad conclusions about where they occur and under what circumstances. They tend to take place in public places, and the victim and the perpetrator tend not to be known to each other. Often, they involve public order offences.

There is little evidence, to my knowledge, of serious problems of corroboration emerging from existing statutory aggravations, or evidence that there have been widespread inappropriate or malicious appeals to statutory aggravations on the part of witnesses. I will always be alive to such concerns, but evidence suggests that they might not be particularly well founded at this stage.

In your written evidence, you comment on suggestions that police and prosecutors in England and Wales are only now beginning to recognise the scale of disability-related aggravations, despite legislation having been in force for some time. Are there any particular reasons for that, and what should be done to prevent a similar situation arising in Scotland?

That is an important and complex question, which I will endeavour to cover coherently.

There are particular issues attached to effective implementation of the disability-aggravation provisions down south, because implementation is intimately tied to wider public and organisational perceptions of disabled people. The two impairment groups that are most likely to be victims of this type of crime are people with learning disabilities and mental health service users. In the past, some organisations have exhibited a cultural reluctance to see such crime as being motivated by prejudice or malice towards a social group—people have less resistance to identifying racist or homophobic crimes, but people tend to see crimes that target disabled people as being motivated by their real or perceived vulnerability rather than by hostility towards a particular social group.

As I said, this is a complicated area, but we have invaluable learning to build on from implementation of the aggravation provisions down south. It is less a question of legislation than it is of organisational and wider public attitudes to disability.

My submission refers to the words of the former director of public prosecutions in England, Sir Ken Macdonald. It was refreshing to hear someone in such a senior position in the criminal justice system in Great Britain exploring the issues as passionately and compellingly as he did.

I say—at the risk of sounding jargony—that we need to draw a distinction between situational and inherent vulnerability. When people raise objections to the use of a statutory aggravation provision for crimes that are motivated by prejudice towards disabled people, the stock scenario that they come up with involves a frail old woman with a visual impairment who has her bag stolen. The objection runs that the person who committed the crime did so because that individual was vulnerable, not because the criminal had any particular animus towards disabled people. That is perfectly true, and I think it likely that, if such a case reached the courts, an appropriate common law response would be used to reflect the particularly callous nature of that crime.

However, we are dealing with another phenomenon, as we have to draw a distinction between people who are inherently vulnerable and people who are in vulnerable situations. To illustrate that, it is worth considering a series of appalling murders of young people with learning disabilities that have taken place both north and south of the border. In those cases, a clear failure on the part of the social care regime allowed those young people to get into vulnerable situations. However, it would have been unacceptable to treat the victims as being inherently vulnerable so that, no matter how serious the offence that they endured, the issue was treated as primarily a matter of social care rather than of rights and justice, as would be the case for any other citizen.

If failures in the social care regime allow a person with learning disabilities to fall in with an inappropriate crowd who exploit the person financially, sexually or in others ways—in a number of those cases, there was a clear pattern of the vulnerable individual being exploited on many different levels and in ways that systematically stripped away their humanity to the point where it became easy for the perpetrators to take the final step of murder—the fact that the person was murdered and was targeted because of a disability is a matter not simply of social care but of rights and justice. The issue should be treated as a criminal justice matter. We can learn from what has happened in a number of such cases down south, of which I am sure the committee is aware.

In your opinion, have the various agencies down south improved their appreciation of the fact that such cases involve inherent vulnerability rather than situational vulnerability?

An encouraging development since we submitted our written evidence has been my discussions with people in the Crown Prosecution Service down south who have done valuable work on hate crime policy. I recommend a paper that Joanna Perry of the CPS published some years ago that explores some of the issues. I would be happy to forward that paper to the committee as background information.

It would be helpful to have that paper, convener.

Absolutely.

An enormous amount of work is taking place, so there are encouraging signs. As I said, when a former DPP takes a lead on an issue, that changes the environment in which the debate takes place.

I should also flag up work that the commission is doing at GB level that makes a number of recommendations on disabled people's physical safety and security. That work sees the issue in terms of the spectrum that I have talked about, by considering not only the failures in social care regimes that help to create vulnerable situations but the attitudinal barriers that make people reluctant to see these crimes as matters of justice and rights rather than simply failures in a care regime.

Thank you, Mr Page. That is very clear, although the issue is complex.

Good morning, Mr Page. As you will be aware, the Equal Opportunities Committee's report on the bill concluded that aggravation based on age and gender should not be included in the bill. What are your views on that?

The commission gave evidence on that point to the Equal Opportunities Committee during its deliberations. Our recommendation was that introducing statutory aggravations for gender and age would not be an appropriate response for a number of reasons. However, the question opens up an interesting but complicated issue.

As I pointed out earlier, statutory aggravations are one—but not the only—response to particular manifestations of crime. The commission feels that particular issues would arise with an aggravation based on age. Although older people are statistically least likely to be victims of crime, they face particular issues of fear of crime, isolation and disconnectedness from wider communities and other generations. Older people can be victims of particular types of crime, such as confidence crimes and so forth. However, taking the lead from our partners in the age sector, we feel that an aggravation would not be the most useful way to target such crimes.

Gender is a complicated area. There are passionately held views on both sides of the debate, but we have taken our steer from the women's sector in Scotland. We think that a gender aggravation is not the most urgent response that is needed to crime that is based on prejudice or malice towards women. The debate is complicated, and we are dealing with a wide range of offences.

That takes us back to the crude typology in relation to how the current statutory aggravations work and the types of crime that will be covered by the bill. Gender-based crime can fit within the model of a public order offence or a crime that takes place in public, but that does not get to the heart of domestic abuse or many crimes involving sexual violence, for example. Our approach is less a case of saying yes or no to including aggravations based on age and gender in the bill and more a case of asking whether that would be the most appropriate response.

We have used the debate as a starting point in commissioning research from the University of Glasgow on current policy and legislative responses to gender-based crime in Scotland in the round. Recommendations on future action will be made and, because of the Equality and Human Rights Commission Scotland's role, there will be particular emphasis on the impact that the gender equality duty can have on public authorities' responses to gender-based crime.

You talk about the matter being complex. If you look back at Official Reports, you will find that we have all said that on a number of occasions. You recognise that the proposed legislation is complex and that it deals with a number of complex areas, and you also say that dealing with age and gender issues is complex. Does the bill represent an opportunity to consider all the issues? You recognise that age and gender crimes take place, so perhaps there is a missed opportunity. Is there a missed opportunity that we can act on?

I absolutely recognise that the crimes take place, and the work of the Equal Opportunities Committee and the Justice Committee is testimony to the fact that an opportunity is being grasped to explore issues further. The commission's work was born out of the debate on the viability or otherwise of a gender aggravation and will be carried forward. The debate on more appropriate and effective responses to how crime manifests itself and is experienced by different sections of society will not by any means begin and end with a discussion of the provisions of the Offences (Aggravation by Prejudice) (Scotland) Bill.

Thank you, Mr Page. That was very clear and helpful. It would also be helpful if you gave the clerk details of the Joanna Perry document. Thank you very much for coming to the meeting.

I suspend the meeting briefly while the panel changes.

Meeting suspended.

On resuming—

I welcome the second panel, who represent the Association of Chief Police Officers in Scotland. We have with us Superintendent David Stewart, project manager, and Inspector Dean Pennington, secretary, of the ACPOS diversity strategy project. We will move straight to questions.

Good morning, gentlemen. In your written evidence, you state that the bill, if passed, will have an impact on the Scottish police service in terms of recording, reporting and monitoring mechanisms. Will you elaborate on that and explain how the police in Scotland currently record crimes that are motivated by prejudice relating to disability and sexual orientation?

On the first part of your question, there will be two impacts on the police service. First, there will be additional information technology requirements, which come with any new legislation that is passed—IT systems need to be upgraded—but, on a positive note, the bill will allow for accurate and consistent recording across all the Scottish police forces.

That also relates to the answer to the second part of your question, which is that, at this time, given that no specific statutory aggravation exists and that no criminal legislation is in place, the recording systems for crimes that relate to LGBT and disability issues vary from force to force.

Will you give me some examples of that variability?

Yes. In Strathclyde Police, homophobic crime is recorded via the vulnerable persons database, which aims to record the impact of particular crimes on victims. Similar crimes or incidents that are recorded on that system include domestic violence and racial incidents. However, no disability-related incidents are recorded on the database at the moment.

Other forces in Scotland record hate crime across all strands of diversity through the STORM command and control system by applying specific codes to incidents. In certain forces, a crime management system has been implemented, with upgrades such as specific markers against certain types of crime, which allow the system to be searched. There is inconsistency throughout Scotland, which ACPOS thinks the introduction of a statutory aggravation will help to address.

That is very clear.

You said that there will be two impacts. What is the second one? You have told us about the information and communication technology impact.

The ICT impact on the police service relates to amending systems to record certain types of crime.

Were you referring to the culture that will come with our creating a statutory aggravation?

I did not really mean the culture but the means of examining the scale of such crime and getting a baseline throughout Scotland. One of the issues that the service faces is determining the levels of hate crime. We can tell you the levels of race crime, and some forces can tell you the levels of homophobic crime, but there is no consistency across all the Scottish forces on the whole hate crime agenda.

Thank you for that. Inspector Pennington, do you have anything to add?

No. Superintendent Stewart has covered everything.

Okay. Thank you.

We have heard evidence on underreporting, which is linked to what you have said, and on which you gave evidence in your written submission. Do you have a perspective on why there should be problems with underreporting? What action are the police taking to try to improve the situation?

Inspector Pennington will certainly be able to add to this answer. ACPOS feels that the vast majority of hate crime is underreported. As we say in our written submission, that could be down to the unwillingness of people to come forward to the police, which is an issue for us to address, but there could be another issue with confidence in the criminal justice system from end to end.

You asked what we are doing to improve the situation. The Scottish police forces work very closely with all diverse communities and organised groups locally and nationally to try to encourage people to come forward. Individual forces and ACPOS are looking at an online third-party reporting system, which would allow people to report hate crime to the police via the internet if they were concerned about coming to police stations.

Someone commented last week from the transgender community that there were concerns that people might be made fun of if they came forward to report an incident, so we are trying to introduce systems and to implement new IT systems that may positively impact upon people's ability and willingness to report crime to us.

I would like you to elaborate on third-party reporting, as I am not sure what is involved. We are talking about reporting by the victim, but at arm's length.

Yes. If there is a reluctance to approach the police directly, victims can go to a third-party organisation, which can take the report on their behalf and act as a mediator between them and the police in reporting the crime. Third-party reporting goes beyond hate crime—it is in place for domestic violence and a number of other crimes—but ACPOS currently has a focus on hate crime.

Does it happen to any extent now? Will the bill make a difference to the extent to which it happens?

In respect of overall reporting or third-party reporting?

Third-party reporting.

The point is that if members of, currently, the LGBT and disabled communities are aware that a statutory aggravation is available, and they see something coming out of that, they will have more confidence in reporting crimes. The better we are at taking reports individually and ensuring that systems are in place when people do not want to come directly to the police, the more that people will be encouraged to come forward.

So the problem is slightly different from those that you have with rape and sexual offences, when there are evidential issues. The issue is not a poor conviction rate once you get cases to court—slightly different issues are involved.

Absolutely. The conviction rate when we go to court with hate crime incidents—racial crimes in particular—is fairly solid, but there is an issue about getting people to come forward and report the crime in the first place.

It was interesting listening to Mr Page talk about the issues around disability. We seem to take disability for granted, far more than transgender issues, but the impact on people coming forward to the police, the concerns about how they will be treated by the criminal justice system, and the concerns about publicity surrounding cases are important factors that must be taken into account.

People probably do not know the nuances of the law when it comes to things happening to them personally. Will the introduction of the bill's statutory aggravations make a difference to the levels of reporting?

I would like to think so. The fact that at the conclusion of a trial the judge will comment specifically on the impact that the aggravation has had will send a strong message out to offenders, at whom the bill is aimed, and to victims, who will be encouraged to take their issues to the criminal justice partners.

One of last week's submissions suggested that the bill might lead to a reduction in the number of hate crimes. However, as with any new legislation, in the early years we should see an increase in the number of such crimes—we will be disappointed if we do not—until we get an accurate baseline. Once we know what the baseline is, the role of the police and our partners is to address the issues and try to reduce the crime level. So one thing that the legislation will do is allow us to have a baseline. It might not be accurate, due to underreporting, but at least it will be a baseline.

You see third-party reporting as being important in improving confidence. To what extent are front-line police officers aware of the potential for bringing in third-party organisations or referring people on for support? Are you conscious of that in practice?

Yes. In all the Scottish forces, third-party reporting is usually co-ordinated by a specialist team, supported by front-line officers. In effect, front-line officers—community officers—are the day-to-day contacts with third-party reporting centres, but that is monitored centrally. In Strathclyde, for example, my unit monitors third-party reporting and supports front-line officers with training and familiarisation with third-party reporting centres.

The committee has no difficulty in accepting that there is underreporting of this type of crime. Indeed, as you will be aware, the results of a recent survey indicated that, for various reasons, there is a great deal of underreporting of all types of crimes and offences. Has Strathclyde Police or any other force undertaken any research into whether there are particular problems with reporting this type of crime?

The only research that I am aware of is on third-party reporting. Back in 2004, we introduced third-party reporting for reports of homophobic crime. A year later, research was undertaken into people's perceptions of the change, including whether it had resulted in increased confidence in reporting such crime. The response from the community was overwhelming: people told the researchers that, although they had not used the new provision to any great extent, the mere fact that it had been put in place gave them confidence that the police took such crime seriously and would deal with it.

On that point, interestingly, the Scottish police service found itself the subject of a tabloid headline only a matter of months ago. At the time, we were slapping ourselves on the back for succeeding in getting more people to come forward, but the paper spoke only of a shocking increase in homophobic crime.

If the bill becomes an act, the committee should expect the usual toing and froing from different perspectives on the reporting of recorded crime levels. From the police perspective, our emphasis will be on the fact that we view positively more people coming forward to report such crimes. That said, the public perception that I described, which is driven by the media, will remain.

As Superintendent Stewart is well aware, you get credit for nothing.

The statutory aggravations of racial and religious prejudice have been on the books for a while. In terms of the bill, what should we avoid and what lessons can we learn?

As we highlighted in our submission, there are minor differences between the bill's proposals and the racial prejudice aggravation. I refer specifically to what members of the judiciary say in court when summing up at the end of the judicial process. Consideration needs to be given to aligning the terminology for all statutory aggravations.

In considering the racial aggravation under the Crime and Disorder Act 1998, the main issue for the police is that there is another piece of primary criminal legislation on racially aggravated harassment and conduct—the Criminal Law (Consolidation) (Scotland) Act 1995—and we can report a racial crime as a stand-alone crime under sections 50A(1)(a) or 50A(1)(b) of it. If we do so, corroboration—two pieces of direct evidence—is required.

Again, as we said in our submission, ACPOS is extremely supportive of the bill and the putting into law of the statutory aggravations that it proposes. We do not wish in any way to delay the progress of the bill through the Parliament, but—longer term—we believe that consideration needs to be given to whether stand-alone criminal legislation similar to that which I have outlined is required for aggravations other than race. If not, given that in the 1998 act we have the stand-alone section 96 aggravator for racially aggravated offences, do we need to retain the other provision?

While I acknowledge those technical arguments—my intention is not to disparage them by describing them as technical—are there any substantive problems with how we propose to proceed?

No.

Good morning, gentlemen. Can you give us further details of the training and guidance that is provided on diversity and race hate crime?

Every new police officer in Scotland receives a week-long input in relation to equality and diversity during the first week of their training at the Scottish Police College. Throughout the remainder of their time there, they receive input in relation to legislation across the board, which includes current legislation on race hate crime and the religious aggravation.

Over and above that, within each force there is on-going refresher training, specifically on diversity, in which any criminal aspects are brought to the fore. There is on-going training at a national level for first-line managers—sergeants, inspectors, chief inspectors and so on—as they progress through the ranks. It gives them a balanced view and, to a certain extent, helps them to understand why legislation such as the bill is important, because of the potential impact of diversity on the population.

How would the legislation impact on the delivery of those training programmes? Would you have to reconfigure them? Would you require additional resources to deliver them?

When any legislation comes into force, ACPOS seeks guidance from the Crown Office on its implementation internally. Once that guidance is received, it is circulated among the Scottish forces. I agree with Mr Page about the size and scale of the bill—it might be a far-reaching piece of new legislation, but it is written in a fairly clear and straightforward way. ACPOS believes that the bill will not have a huge impact on training, although there will be more to do on the awareness side. Some input will be needed to adjust our IT systems to take account of the legislation, but that will not be particularly onerous.

In your reply to Nigel Don, you referred to your written evidence and said that it was possible that some aspects of the legislation could cause confusion. You dealt with the question of race hate crime, but would any other aspects cause similar difficulties?

I do not think that difficulties would be caused with the stand-alone aggravations as they are. I am here today representing ACPOS, which represents the interests of the front-line police officers who will have to implement the legislation. Although we understand that the legislation is offender focused, we are keen to ensure that the impact on the victim is taken into consideration by the first officers on the scene. When those operational police officers arrive on the scene, they have immediately to think about whether the incident is to be dealt with under section 50A of the Criminal Law Consolidation (Scotland) Act 1995, section 96 of the Crime and Disorder Act 1998, section 74 of the Criminal Justice (Scotland) Act 2003 or a section of the new legislation on offences aggravated by prejudice. I reiterate that ACPOS does not wish to delay the process in any way, but we wish there to be, at some future date, a single piece of stand-alone legislation that covers all hate crime, whether it involves aggravators and/or criminal offences.

That is very clear.

The bill states that evidence from a single source is sufficient to prove that an offence is aggravated by prejudice. In your written evidence, you state that that will have a positive effect on the police, because it will remove the need for a victim to have independent witnesses to the aggravation. In the words of your submission:

"an individual person's perception of motivation for an offence will be sufficient for the aggravation to be competent."

In your experience of dealing with racial and religious aggravations, have they given rise to false accusations that offences were aggravated by prejudice?

To my knowledge, there have been none in relation to racial aggravation. In general terms, many of the issues around race are obvious. In relation to religious aggravation, to my knowledge there have been no such cases. As I said earlier, clear guidance from the Crown Office will assist ACPOS and the police service in implementing the legislation.

As Mr Martin said, we must also consider how we inform our officers about the aggravations. Our officers have experience of dealing with aggravated offences, such as those to which you have alluded, so it will be their responsibility to highlight within police reports to the Crown Office any concerns in relation to aggravated offences. I would like to think that police officers will be sharp enough to identify the aggravations at any point. As I say, there is nothing to suggest that the existing statutory aggravations have had a negative effect.

There are no other questions. I thank Superintendent Stewart and Inspector Pennington for coming to see us this morning. Your evidence has been useful.

Meeting suspended.

On resuming—

I welcome the third panel of witnesses, who represent the Law Society of Scotland. We have with us Alan McCreadie, the deputy director of law reform; Raymond McMenamin, of the criminal law committee; and David Cabrelli, of the equalities law sub-committee. Good morning, gentlemen, and thank you very much for coming. We will move straight to questions.

Good morning, gentlemen. In your written submission, you express concerns about the effectiveness of the bill. Do you believe that the common law is sufficiently equipped to deal with crimes against people on the basis of their sexual orientation, transgender identity or disability?

The short answer is yes. The question is whether such an aggravation could be applied effectively when those issues arise in court. There is nothing in the bill that cannot be achieved through the use of the common law as it stands. What the bill does is highlight particular problems. It may be that those problems are not highlighted at present, which may have given rise to the need for such legislation. However, essentially, it is possible to deal adequately with such crimes at present under the common law.

There is nothing that I can usefully add to that. In our written submission, we also refer to issues of evidence that must be discharged by the Crown if legislation is in force that adds a statutory aggravation. Under normal circumstances at common law, in disposing of a case the sheriff, judge or justice of the peace can take aggravating or, indeed, mitigating circumstances into account in arriving at a sentence. However, under the legislation on racial and religious aggravation, the matter must be proved.

I agree. As Mr McMenamin and Mr McCreadie have made clear, the common law could deal with these issues, but the committee should remember that the benefit of the bill is that it will send a positive message to society and the public; on the other hand, however, it will mean a loss of some of the flexibility that is inherent in the common law. Those two competing requirements have to be balanced.

Mr McMenamin said that the current law needs to be applied more effectively. How could that be done? What are the advantages of the flexibility of common law?

Procurators fiscal and prosecutors more generally could be trained to highlight such issues when they come into court. Of course, that might be a matter for the Crown Office and Procurator Fiscal Service.

If these issues are to be highlighted in court, the prosecutor has to bring them to the attention of the presiding judge or sheriff. That approach could be coupled with training for the judiciary to recognise and deal with such issues when they arise. My understanding is that the intention behind the bill is partly to highlight these issues in court and ensure that, as with offences involving racism and sectarianism, they stand out from the norm. It is for the personnel in court to apply the current law and highlight these issues and for the judiciary to deal with the matter once it has been highlighted.

I have nothing that I can usefully add to that.

A benefit of common law is that crimes such as breach of the peace and assault are drawn in fairly general terms and can be used at the instance of both the prosecution and the judiciary. With a statutory aggravation offence, however, defence solicitors might well challenge the prosecution's case with technical arguments over the meaning of particular words. As a result, those words will become frozen in time and the flexibility that is inherent in the more general common-law approach will be lost.

Does the bill have any advantages? I believe that Mr Cabrelli was about to touch on those earlier.

Indeed. The bill sends a message to society about the statutory aggravation of offences based on sexual orientation, transgender identity or a victim's disability and puts the issue into the public consciousness. The issue might be inherent in the common-law system, but it is not so much at the forefront of it. Moreover, the relevant subsections of sections 1 and 2 will provide the impetus for better recording of these crimes by the judiciary.

We should bear in mind that the more you bring legislative aspects into the courts, the more opportunities you give the defence to challenge cases. You might find, for example, that, as with racially aggravated charges, cases go to trial on the aggravating factor alone, which means that witnesses have to go through the ordeal of giving evidence. We should not lose sight of the fact that it is not simply a case of highlighting the issue and the court rubber-stamping it—it will be open to challenge. I am not saying that that is an argument against the proposal, but it is worth considering.

I want to get a clear view of the position with regard to solicitors in practice in the criminal courts. You have indicated that the common law can deal with these matters, but is that happening? Are judges and prosecutors highlighting such issues in the way in which the bill seeks? In your experience, is there a difficulty? Do the issues not always come through as strongly as they ought to?

Of the three of us, I am the most regular practitioner in the courts. The issues are highlighted, but not with a great degree of consistency. It comes down to the specifics of the case and the approach that the prosecutor takes in presenting it. For example, if an assault was clearly motivated by homophobic attitudes, I would be surprised if there is a procurator fiscal in the land who would not bring that to the attention of the court.

I want to pursue the point. You have touched on the issue of inconvenience to witnesses and the desire to get rid of cases without putting witnesses through the ordeal of giving evidence. The other side of the coin is that, through plea bargaining, something that ought not to be compromised on can be negotiated away. Does that happen at the moment and, if so, to what extent?

In racially aggravated cases, procurators fiscal were instructed—and may still be instructed—not to desert cases or to accept not guilty pleas, so their hands were tied; they had to run with those cases, regardless of their personal view. Their independence as prosecutors was compromised in that regard; not many practitioners in the courts see that as healthy. There will always be situations in which charges may be diminished, for want of a better term, as the defence will always challenge the charges.

I am not sure that we are quite hitting the nail on the head. There is a fear that, if a substantial aggravation has been libelled in a case, presumably for good reason, that may be lost by a compromise, in effect, between the prosecution and the defence out of a well-motivated desire to save witnesses trouble. Is that happening to any significant extent in this area, or, based on your experience of professional practice, is it not an issue at the moment? The other witnesses may want to comment.

I cannot say that it happens on matters relating to disability, sexual orientation or gender, but it does happen—day in, day out. If we introduce an issue as an aggravating factor, under common law or statute, the defence will potentially use that as a bargaining tool to diminish the charge. That happens in other areas. A defence lawyer is under a duty to act in his client's best interests; if his client's instructions are to challenge the charge of aggravation, it is fair game.

For the avoidance of doubt, are you expressing opposition to the view that the procurator fiscal's discretion should be compromised by statutory direction or direction from the Lord Advocate in such cases?

Yes. Generally, I do not think that it is healthy for prosecutors to have their hands tied in such situations. If there is be a professional, independent prosecutor in court, he or she should be able to act as such and use their discretion.

Do the other witnesses have a view on the matter?

As my colleague Mr McMenamin said, statutory aggravation can be used as a bargaining tool when dealing with the substantive offence. The accused may plead out to the charge under deletion of the statutory aggravation; I am sure that that happens day in, day out in all our courts.

I agree with what has been said and have nothing to add.

Good morning, gentlemen. You state that the creation of a new statutory aggravation may impose additional burdens on the Crown. You have already touched on the issue, but could you describe those burdens in more detail?

Take the example of a situation in which one man hits another in the street, people intervene and pull them apart and, as they are being pulled apart, the person who is alleged to have committed the assault makes a remark to the other person concerning gender identity or disability. The onus is on the Crown not only to prove the assault but to tie in the alleged remark to the assault, in order to show that the assault was motivated by that person's views on gender, disability or whatever. All that adds to the burden on the Crown, and might, in some instances, make it harder for the prosecutor to secure a conviction on the aggravated charge. Of course, the substantive common-law charge is still there to fall back on, but the issue of aggravation can make everyone take the long way round to get to the final resolution. Touching again on what we said about challenges from the defence, I think that such a trial could end up being quite long and involved.

However, as you said, the common-law charge of assault would still be there to fall back on.

Yes. That is the situation that currently exists with racial and sectarian aggravation.

I have nothing to add to that. As Raymond McMenamin said, the issue here is simply the aggravation, which will have to be proved along with the substantive charge.

As was said earlier, with a statute, there are definitional issues that can be challenged at the instance of the defence. The case has to fit with the wording of each of the subsections and various challenges can be made on the import, width and scope of particular words.

Should we, as legislators, be concerned about the additional burdens that will be placed on the prosecutors? It is their job to prosecute on the basis of legislation that has been passed by Parliament. If the common-law charge is still there to fall back on, should we be concerned about how complex and challenging the situation will be for the prosecution? The prosecution will always face challenges, will it not?

That is right. Ultimately, the decision about how something is prosecuted is down to the Crown. I do not think that the concerns are a bar to legislating in this area, but they are a consideration. Practising lawyers will tell you that the more laws that are created and brought into courts, the more complex the job of presenting, prosecuting and defending cases becomes.

Mr McMenamin, as a matter of interest, what is your view of racially aggravated offences and offences that are aggravated by sectarian behaviour?

Insofar as they are prosecuted in courts?

Yes. What do you think is the efficacy of those charges?

They have been effective. In Scotland, we have particular issues in those areas, and the aggravations that have been brought before the courts following legislation have been useful in highlighting those cases in which those issues have arisen. However, there is a caveat to that, as I have seen cases in which those charges have been badly applied, and in which aggravations have been attached—and, indeed, pleas of guilty have been entered—even though the situation might not have amounted to terribly much.

For example, a case that I worked on in Glasgow involved a teenage male who had been arrested for a number of matters—there were a number of charges on the complaint. At the trial, after some evidence had been heard, the procurator fiscal decided not to proceed with the charges, save one. However, the accused pled guilty to a racially aggravated breach of the peace in a police station in Glasgow. One of the police officers who had been processing him at the police station had an English accent and, at one stage, well advanced into the processing, the youth, who was drunk, said something along the lines of, "You're an English bastard." The case was prosecuted as a charge of racially aggravated breach of the peace. Ultimately, as part of what was I suppose a plea bargain, the accused pled guilty. The case was dealt with as no more than a token breach of the legislation and a very small fine was applied. My view, which is shared by many practising lawyers in the courts, is that that is not a true use of the legislation and not the sort of situation that it is designed to attack. As I say, the caveat is that, although such legislation can in general be effective, it is only as effective as those who bring it into court and apply it can make it. To be frank, if the legislation is used poorly, it is at risk of being trivialised and not having as effective an impact as it can in more serious situations.

Legislation can always be trivialised and we should try to ensure that that does not happen, but some might argue that, although the particular case that you mention was minor in nature, it was still an infraction and therefore rehabilitation or the salutary effect of a fine was appropriate. Earlier, Mr McMenamin said that the racial and sectarian aggravations of offences have in the main been effective. Why should the aggravation that we are considering not be effective and why should it not raise particular issues?

I do not think that I have ever said that it will not be effective.

I beg your pardon. Why will it not be particularly effective, then?

I would not even subscribe to that. There are benefits in introducing the proposed legislation. The distinction that was made earlier was that the issue can be dealt with under the common law. We need to consider what the ultimate aim is. If it is just to punish people a bit harder, that is slamming the stable door after the horse has bolted. However, if the aim is to highlight a problem in our society for people with disabilities and gender issues, the bill can be effective along with other measures such as training and education. We must make available to the courts ways in which to tackle the issue after conviction. I am not convinced that simply hitting people with bigger fines or putting them in jail for longer will be effective, but if the bill is coupled with other steps, it can be effective.

I agree with you on that.

The committee is aware that some victims of hate crime might be reluctant to report such crimes for fear of being outed. Does the bill have the potential to focus unwanted attention on personal and confidential aspects of a victim's life if a case goes to court, which might, unfortunately, increase the level of non-reporting?

In the absence of clear statistics on the level of underreporting, it is difficult to conjecture about the effect that the bill will have on that. To return to the bill's symbolic effect and the point about putting the issue into the public consciousness, one would hope that the bill will encourage persons who have been the subject of hate crime to come forward and report. As the ACPOS representatives mentioned, there has been an effect in the context of racially aggravated crime. However, I am not in a position to comment on the effect of the fact that individuals who have been the subject of hate crime will have to reveal various details about their personal life in court.

We will have to see what happens. In our response, we talked about the need for effective monitoring. I endorse that point. The issue must be considered if the bill is implemented.

I agree that it is difficult to answer the question. Monitoring of the legislation would be important in that context.

In the final paragraph of your written evidence, you mention the need for updated and refreshed diversity training, for police officers in particular. That is a statement of fact, to which I take no exception. Is it an unexceptional statement of what will be needed, or is there something more behind it, which perhaps relates to your experience of previous legislation?

There is no hidden agenda. We simply wanted to highlight best practice.

It is an unexceptional statement.

We will treat it as such.

Given that court practitioners are here today, I will ask Mr McMenamin the same question that we asked ACPOS. In your experience, have you come across false accusations of racial or religious aggravation being made in an attempt to ensure that prosecution went ahead?

Yes. I have encountered such accusations in relation to racially aggravated charges. It has been contended—and I have good reason to believe—that accusations about the use of racist language have been made when that might not have happened, or that such aspects have been exaggerated, to ensure that a prosecution followed.

Do you want to comment, Mr Cabrelli?

I have nothing further to say on that point.

I take it that you are adopting the same position, Mr McCreadie.

Yes.

Mr McMenamin said that such instances have occurred in his experience as a practitioner. Do they occur often or once in a blue moon?

They are not infrequent. They do not happen daily or weekly, but they do arise. Very often when one is taking instructions from a client who has been charged, one gets the flavour of something that was said having been blown out of proportion. Very infrequently, one gets the impression that something has been made up altogether.

"Not infrequent" is not very specific. What percentage of cases are you talking about, approximately?

In about one in five—

That is a high proportion.

In about one in five cases there is an issue about the veracity of the accusation.

That is helpful.

If there are no more questions, I thank the witnesses. Your evidence was clear and will be extremely helpful to the committee.

Meeting suspended.

On resuming—