Good afternoon everyone. I welcome you to the 32nd meeting in 2005 of the Justice 2 Committee. Papers have been circulated to members. Our main function this afternoon is to continue our scrutiny of the Police, Public Order and Criminal Justice (Scotland) Bill. I have apologies from Colin Fox, and I am pleased to welcome Carolyn Leckie in his place. I also have apologies from Bill Butler, and I welcome Cathie Craigie in his place.
Good afternoon Mr Scott. In your organisation's response to the Scottish Executive's consultation, you expressed concerns about the proposed role of ministers in setting the Scottish police services authority's strategic priorities and in relation to the appointment process. Do you still have those concerns and, if so, why?
We would probably always express concerns along those lines, perhaps for reasons of undue cynicism on our part. I do not see why it has to be, and increasingly seems to be, that way.
How would you do it differently?
The Parliament, rather than ministers, should have a role in such matters.
There are concerns about the make-up of the police services authority board, such as the inclusion of a lay convener and lay members. Do you have concerns about that or about lines of accountability between the board, ministers and the director of the Scottish crime and drug enforcement agency?
I saw the evidence about the concern that there may be too many people on the board. I have no particular concerns so far as that is concerned.
Nothing about lines of accountability between the board and the others mentioned?
No.
I notice that you think that the bill does not go far enough on police complaints and misconduct. The bill will provide for a police complaints commissioner who will oversee non-criminal complaints, but the police will still carry out those investigations. It seems that you would like to see that commissioner with a much-strengthened role. Is there an issue here? Is there something wrong with the current complaints procedure? Do you have evidence that the police are not doing this properly?
A significant number of people contact the human rights centre to complain about police misconduct or other police-related matters. We obviously encourage them to either come forward to the police themselves or to report through third parties. However, some people still will not do that. The answer is yes—there is still a problem. What is suggested in the bill is not much more than a rebranding of the current system. It is not terribly different from HM inspectorate of constabulary for Scotland's role—it does not involve any investigation, and it is not entirely clear that the new commissioner would routinely be the first point of contact when people have a complaint. I do not think that what is proposed lives up to advance billing. In the various consultations on the matter, we suggested that, despite having an independent Crown Office and Procurator Fiscal Service in Scotland, we should have something that is similar to the English Independent Police Complaints Commission, including powers in relation to criminal matters. It should be simplified; there should be an independent police complaints commission that deals with all civil and criminal matters. That would obviously have to be in co-ordination with the Crown Office and Procurator Fiscal Service. My understanding is that, when the Executive gave evidence to the United Nations Committee against Torture, it was suggested that the sort of commissioner that we would get would be more akin to the proposals that we made than to what is in the bill.
So you are looking for a gateway that is independent of the police and the Procurator Fiscal Service.
Yes.
I do not know whether the Procurator Fiscal Service would agree with you, because of the separate legal systems that exist.
It probably would not.
I want to ensure that you think that there is a real issue here and that it is not just a question of perception.
There is a real issue. One of the acknowledgements in introducing a bill that includes an independent commissioner is that there is a difficulty of perception on the part of people who have complaints against the police, whether they are genuine or not. I do not think that what is in the bill will do anything to change that.
Do you think that the public realise that there is a role for the procurator fiscal in the present system and that there would be such a role in the new system? Do people distinguish between a criminal complaint and a complaint about bad manners and so on?
No, they do not and, in any event, there might be an overlap. I am a solicitor and, often, it is clients of mine who are charged with criminal offences who have complaints against the police, some of which are groundless and some of which are genuine. That is the sort of constituency that you are dealing with and such people see no difference between the police and the Procurator Fiscal Service. One of the reasons why we would like there to be an independent commissioner is that, at present, there is an extent to which the police act as gatekeepers for the information that is passed to the Crown Office and Procurator Fiscal Service.
That is interesting. Some police forces say that they pass everything to the fiscals, so that they become the gatekeepers, rather than the police.
I have heard that said on a number of occasions about other things. However, that has not always proved to be correct.
Is it your view that, under the current system, there is not a robust way of proceeding with alleged criminal complaints against the police?
In practice, the system is robust much of the time. However, that is not the perception of the people who make the complaints. As far as I know, there are concerns on the part not only of the people making complaints but also on the part of police officers about how complaints are dealt with. I believe that there is some support in policing circles for the issue being removed completely from the police and the Crown Office and Procurator Fiscal Service.
Earlier, you outlined the model that you would like to be in place. Is there any structure in Scotland, in any area of activity, that is analogous to what you want?
Not that I can immediately think of. The structure is similar to that which is in place in England and Wales. Although there is no Crown Office and Procurator Fiscal Service south of the border, there is the Crown Prosecution Service. Obviously, therefore, the various responsibilities have to be juggled in that system as well.
However, in England and Wales, the police have a much more prominent role in prosecution than they do in Scotland.
Yes.
Football banning orders are being proposed as a means of reducing football-related violence through a conviction or a civil order. Do you have any human rights concerns about the orders, given that they would restrict someone's movements on certain days, at certain times and in certain places?
Obviously, there are human rights issues, which are identified in the policy memorandum.
For clarity, your position is that you have no difficulty with restrictions—such as of the ability to move in certain areas around a football ground—as long as they are attached to a conviction.
Yes.
It is the absence of a conviction that you have a problem with.
Yes. The conviction brings in the other side of the European convention on human rights, which gets the blame for far more than it is responsible for. In relation to most rights, the convention contains an opportunity for the state to say, "You have lost that right because of the balance of other people's rights." When someone is convicted due to a serious football-related disturbance or violent incident, the state is entitled to say, with the full backing of the European convention, "You have gone too far, so other people's rights come into play." If we use civil orders to get the same end result, we have to be far more careful. It will be much easier for people wrongly to be caught up in such orders. We can see that from some of the language in the bill. Civil orders will take into account whether someone has
Thank you. That helps.
I have a supplementary question on that. You used the phrase "football-related disturbance". Do you think that football banning orders should be tied only to football matches or should courts be able to use football banning orders in football-related cases—for example, if a fight is football related but it takes place in the middle of July, away from the football season?
It is a difficult question. Numerous words are used in the bill to try to pin down "football-related disturbance", but it is like wrestling with jelly. That particularly applies to the suggestion that people who watch a football game on television, perhaps in a different part of the country, might get caught up. The bill represents a reasonable attempt to pin the question down, but the further we get from something that happens at a football match or on the way to or from it, the more difficult it should be to obtain a football banning order because the court will be less certain that the incident was football related.
Do you have any concerns about the removal of a person's passport? Banning orders may require people to surrender their passport so that they are unable to travel during the period around international matches or matches that club teams play abroad. Do you have any views on that?
That is unnecessary. A reporting condition on the day of a game would be sufficient.
Why do you say that? The measure seems to have been fairly effective in reducing the amount of violence abroad from certain sections of the England supporters.
Removing someone's passport does not prevent their leaving the country, but if there is a reporting condition that requires them to turn up at the police station at kick-off time, it will be difficult for them to be in two places at one time. The removal of passports is not the only approach, nor does it seem the most effective one.
Surely people need a passport to travel abroad.
They would need some form of identification, but there would be the possibility of their obtaining another passport. Courts regularly impose a bail condition these days that involves someone not only surrendering their passport but accepting the condition not to apply for a duplicate.
Do you think that this is effectively a loophole? Do you think that more stringent conditions should be applied?
I do not regard it as a loophole, but I am not convinced that it is the most effective way of doing what is intended.
Do you not think that it is reasonable and proportionate that, perhaps because of an incident at a ground, a person should have their passport removed to prevent them from travelling abroad?
That is one way of doing it. I am not saying that I would object to that under any circumstances, but doing it that way probably gives rise to a bit more difficulty. Obviously, it would be possible for someone to apply for a restriction on that if they could demonstrate that they were going on holiday and that their travel was entirely unrelated to football.
You talked earlier about your concerns about the definition of the behaviour criteria that a sheriff would have to have before him before making a football banning order. Section 48(4) gives the two criteria that must be proved:
Obviously, the second part of the definition is absolutely essential, but to say that someone has
So it is the text of section 48(4)(a) that you are concerned about. You think that it is perhaps too vague to allow for meaningful legal enforcement.
Yes.
Thank you for that. On the question of the standard of proof and evidence, non-conviction information, including video evidence, could be used to justify an application for a football banning order under civil procedure. Is it purely and simply the standard of evidence that would allow an FBO under civil procedure that is giving you concern?
Yes, it is. Obviously, if there is video evidence of someone perpetrating serious violence at a football match abroad that, for whatever reason, has not resulted in a conviction, it is difficult to say that that person should not be subject to the same requirements. However, on the test of evidence, my view is that we should do everything possible in the first place to explore the possibility of getting a criminal conviction and have the availability of a civil order only as a last resort.
Modern policing methods, which committee members have seen in action first-hand at a big football match, depend on technology, particularly the photographic facilities that are available through video links and the placement of cameras outwith and within stadia. Given that the bill's purpose is to try to stop or restrict unacceptable behaviour, do you accept that video evidence of such behaviour should be acceptable for placing before a court for a banning order?
Yes, it should. It would be difficult to say that there would be anything terribly wrong with doing that. However, in terms of the bill, we would be faced with situations in which the evidence would be much less good. Video evidence is one possible source of evidence, but not the only one. If a matter was sufficiently serious to justify an attempt to get a banning order, questions might arise as to why there had not been a prosecution.
Okay, but you accept in principle that, in certain circumstances, the procedure that I described might be appropriate.
Yes.
Thank you for that.
I have a brief question that follows on from the convener's line of questioning. When someone has a history of violence—associated or not with football matches—is it reasonable to take that into consideration if the police believe that that person is likely to be involved in violence at a football ground?
If that history is not football related, I do not see why it should come into the realm of a football banning order.
I ask because, as you know, section 48(4)(b) refers to
I imagine that the two requirements are very much related, but I take your point that the provision could be seen as an additional safeguard. I prefer having paragraph (a) as well as paragraph (b) to having paragraph (b) on its own.
Notwithstanding the merits of the civil and criminal options—we are grateful for your comments about that, which are on the record—do you have any comments about the periods of the bans?
Yes. I am not entirely sure why the periods were selected. In general, I am against any fixed periods. If a matter must go through the criminal courts or the summary courts on a civil application, I do not see why the sheriff should not determine the length of the ban on the basis of the information that is placed before him or her.
On the content of orders, section 49(4) provides for orders to make additional requirements. The bill does not say this, but I presume that that opens up the possibility that such requirements could, for example, concern undertaking orderly behaviour programmes to deal with violent conduct, whether or not it is alcohol related. Requirements on top of orders could make them more rehabilitative of conduct. Those requirements could be consistent with the length of a ban, especially if it was a three-year ban under the civil process.
That is true. The other point that struck me about the length of an order is that two thirds of it must be served before an application can even be made to the court. If orders have a rehabilitative aspect, which one hopes for, having to wait for two thirds of a 10-year order to elapse might in some circumstances be excessive, so perhaps more flexibility is needed. For example, if someone is banned from driving for 10 years, they can apply to the court after five years. In general, an application can be made after half the period of a ban has passed. I am not entirely sure where the two thirds came from.
We will move on to the provisions on public processions. In its response to the Scottish Executive's consultation document, the Scottish Human Rights Centre highlighted the importance of having regard to human rights considerations when local authorities seek communities' views. It also said that the presumption in favour of the right to march and assemble should be protected. We must grapple with that, because some of the evidence that the committee has received raises concerns that ECHR guarantees of the right to march or assemble could place local authorities in a difficult position when balancing the views of communities that have been consulted with people's right to peaceful protest. How could we resolve that?
This is not something that I find myself saying terribly often, but what is in the bill covers the situation. My colleagues and I at the Scottish Human Rights Centre were slightly worried by the evidence that was given. The ECHR is being blamed by everyone for everything these days. The fact that the convention is, for the most part, a balancing exercise—including in relation to the right to freedom of assembly—is properly recognised in the bill.
The information that the committee heard last week from the local authority representatives was that they could not deliver the kind of consultation and involvement of the public that the bill calls for to address public concern. I should think that they would find it very difficult—although I should not put words into their mouths—to address the concerns of communities while allowing applicants, whoever they may be, to hold their parade or march. Your response is that the bill covers that.
I think that it does. I tried to read last week's evidence, but it was not on the website last night. Therefore, I am going by the newspaper coverage of what the local authorities said. I am not sure where they got their advice about the ECHR problems, but our view is similar to the advice that the Executive received: it is a balancing exercise. The right to freedom of assembly is not unqualified and the rights of the community have to come into play. If the sort of consultation provided for in the bill causes practical problems for local authorities, that could be a separate issue. However, local authorities should not be able to say, "We can't stop the marches or the processions because of the ECHR." That is not right, and it should not be the case if all the factors are taken into account.
One of the other issues raised with the committee was who would be required by the bill to notify a local authority of a proposal to hold a public procession. The bill includes everybody, with the exception of funeral directors. It was suggested that perhaps uniformed organisations should be exempt. Does your organisation have a view on that suggestion? The brownies were mentioned specifically.
I am not sure how much trouble the brownies have caused recently; I presume it was the hangers-on rather than the brownies themselves. I am not sure about that suggestion. If we are to have a system, it may be better to start by having all organisations subject to the notification process. Eventually, the track record of an organisation and its compliance with any code of conduct would make it much easier to present a case for saying that that organisation should have a dispensation from having to apply.
Thank you.
Fascinating though this is, may I move us on to immunity from prosecution? One of the provisions in the bill allows for immunity from prosecution to be revoked. Does that proposal give you any cause for concern on human rights grounds?
It does. The Law Society of Scotland and the Faculty of Advocates have submitted written evidence on the issue. As a solicitor, I deal with criminal cases and appear in the High Court. Under the current system, the factors that the bill deals with are taken into account. I am not entirely sure that, in attempting to do the right thing, the bill improves on the situation.
I hope that Jackie Baillie will not mind if I ask for clarification on a supplementary point. I presume that, if the bill was enacted as proposed, there would be a fair degree of uncertainty if an accused person who was promised immunity from prosecution fell short of the job when giving evidence and was then prosecuted, because that person might well have made admissions at an earlier stage that could prejudice the trial. Is what the bill seeks to achieve likely to happen in practice?
Sorry, I meant to cover that point, which is one of our main concerns. In effect, the Crown would be barred from subsequently prosecuting someone from whom there had been any significant degree of co-operation, because as that person would have shown their entire deck of cards to the Crown, they would not be able to get a fair trial. All sorts of complications could result if a person's evidence did not live up to expectations. For example, issues might arise about whether the person understood properly what they were asked during the precognition process. Further pressure would inevitably be brought to bear on the person, so they might need a forum to explain why their evidence did not appear to live up to expectations. To give somebody immunity and then to try to change that would be a can of worms for the prosecution. That cannot happen, at least not if there is to be a fair trial at the end of it.
Sorry to interrupt, Jackie.
That is okay. You elegantly pre-empted my question, convener, but I have thought of another one. Mr Scott, you say that the situation will be difficult. I understand where you are coming from, but is it not the case that the system operates successfully elsewhere?
I do not have much knowledge of the experience in other countries, but, as I understand it, the system indeed operates successfully elsewhere. However, our present system works well, too. Under our system, everyone has a better idea of where they stand. There is a danger that some matters that are open at present might move behind closed doors or into sealed envelopes. One practical difficulty is that an advocate or a solicitor advocate who appears for someone in the High Court might not know that such an agreement has been reached, which would make the situation almost impossible. When they spoke to the person afterwards about the sentence that had been imposed, how would they know whether that sentence was appropriate if they did not know whether a deal had been struck that might have resulted in anything up to a third being taken off?
I presume from your comments that, if a means of disclosing such information existed, some of your concerns would evaporate.
Yes, they would. The disclosure would have to be to the person who was defending. Apart from anything else, giving somebody a letter of agreement to be taken back to prison with them would not necessarily be the safest approach.
My question relates to the provisions in the bill to give the police the power to require suspects who are arrested for certain drug-related offences to take a drug test and to require those who test positive for certain class A drugs to attend a drugs assessment, although they will in no way be forced into treatment—access to treatment would be voluntary. Do you have concerns about those provisions?
Yes. I saw the evidence that was given about those provisions and share the concerns. The provisions are well meant—everyone can see that they represent an attempt to tackle the difficult underlying problem of significant drug use in most offending. However, I do not think that the bill takes the right approach.
So you believe that there are too many imponderables.
Yes.
The evidence that the committee received from the arrest referral scheme in Glasgow indicated that, at times, a balance was needed between enforcement and a voluntary approach. Such a balance could well be needed in relation to the human rights elements of the provisions.
Yes.
Sections 73 and 74 outline new powers. Section 73 is headed, "Power to require giving of certain information in addition to name and address", such as date and place of birth and other associated information, for identification purposes. Section 74 is on taking fingerprints. Do you have views about those measures?
Yes. Perhaps I am unduly cynical, but I do not believe that the answer to everything is to give the police more powers. I do not know where those provisions came from; I was not aware that the police had particular problems and the policy memorandum does not really suggest that the police regularly encounter serious difficulty. If people are giving the police their names and address, they are probably volunteering the other information, whereas those who refuse to give the other information would probably not give their name and address to start with. I am wary of giving the police any more powers, particularly where it appears that there is an absence of need.
Are you making the same point about fingerprints?
The issue of fingerprints worries me a wee bit more. The evidence from the Scottish Criminal Record Office said that the relevant technology is not yet available, which means that we are legislating slightly ahead of ourselves. However, I am not aware that, even in England, the technology is reliable enough to do within seconds what we cannot do after several years in the Shirley McKie case. I do not believe that machinery is yet available anywhere that can conclusively determine the identity of someone from their fingerprint.
The policy memorandum indicates that the measures in the bill will make the process of identification easier for SCRO. Obviously, that will help with regards to the process that the police must go through, as will the ability to take fingerprints outwith a police station. Am I correct in thinking that you are not against the two powers in themselves but that, as a matter of principle, you are wary about giving police more powers?
Yes. There might be particular objections to particular powers in particular circumstances, but the starting point is that the police have adequate powers to do everything that we expect them to do. The act of giving them more powers often stems from a wish to be seen to be doing something rather than from a wish to do something.
However, if you were a suspect, surely you would rather be able to use some technology to clear yourself in situ than have to go back to the police station to sort everything out.
Yes. Inevitably, the police will not always use any extra powers that they are given in the way that I am suspicious of. However, the more powers the police have, the greater the possibility that those powers will be abused. The more requirements that the police can make of, for example, a young person—and it would tend to be young people who would be on the receiving end of the requirements—the more scope there will be for those young people to be the subject of unnecessary requirements in situations in which the police do not have reasonable cause. In that sort of situation, the young person will quickly be dragged into the criminal justice system and could be facing a prison sentence because of something that might have started off as an abuse of power.
You are talking about an abuse of power rather than about the power itself. The proposed power is probably neutral. You are talking about the way in which the police might misuse a power.
Yes. One must always ensure that safeguards are built in any time powers are increased, just to ensure that there is a degree of accountability. In relation to a power that is given to a police constable on the beat, it is difficult to see how there would be sufficient accountability, especially in the absence of a proper independent police complaints commission to ensure that the police did not abuse their powers.
Well, if we get the one, perhaps you will be satisfied with the other.
Perhaps I will come back and recant my objections.
In principle, you are not disputing the perhaps wise pragmatism of the proposal; you are simply expressing a concern about how, in practice, the power might be used.
Yes.
Are you saying that the only problem with the power is that the police might abuse it? Is it not the case that people who are just wandering about have a right not to give their details to the police or to be fingerprinted in the street? What level of suspicion must a police officer have to determine that he has the right to fingerprint someone?
The two issues feed into each other. Whenever there is an increase in police powers, my concern is the possible abuse of those powers. It used to be that the police needed reasonable belief before they exercised certain powers, but I think that that situation has been watered down over the years. If we get to a situation in which the police have the power to do something without having a reasonable belief or a reasonable cause for doing it, we will be in difficulty, because there will be no question of accountability to anyone other than themselves and their consciences. That relates to my concern about the abuse of power.
Are there enough safeguards in relation to the powers that we are discussing?
I do not think that there are any safeguards in relation to those powers.
I do not think that there are, either.
As I say, the fingerprint side of the proposals still baffles me a wee bit.
There is a clear caveat relating to a police constable's power to be able to request or require someone's fingerprint. For example, the constable could be suspicious that false information had been given and might want to clarify the situation quickly on the spot. Currently, the person would have to be detained at a police station. Arguably, it is more efficient for the police constable to use not only the well-established power that they have to ask for someone's name and address but a power to clarify the situation on the spot. By and large, that could mean that many people who would be detained currently would no longer need to be detained.
If anyone were able to give me a guarantee that those were the only situations in which the power would be used, I would keep quiet. However, I think that, realistically, the powers are likely to be targeted at particular sections of the community. There are already grounds for suspicion that there has been unfair targeting. I am thinking in particular of the police's targeting of young people.
Yes, but they still have to have a suspicion. This is not over and above what the existing—
I cannot remember whether the phrase "reasonable suspicion" is used in the section.
Section 73(6) amends the Criminal Procedure (Scotland) Act 1995 by replacing "his name and address" with
Okay. There are no further questions. Thank you for joining us today, Mr Scott. It has been helpful to the committee to be able to hear your views directly.
Meeting suspended.
On resuming—
I welcome our second panel of witnesses: Detective Chief Superintendent John Carnochan from the violence reduction unit of Strathclyde police; his intelligence analyst, Will Linden; Andrew Murray, a consultant cardiothoracic surgeon from Glasgow royal infirmary; David McKenna, chief executive of Victim Support Scotland; his operations manager, Neil Paterson; and Mary Hepburn, a consultant obstetrician and gynaecologist from the Princess Royal maternity hospital in Glasgow.
We started off at the tail end of last year, taking a hard look at the amount of violence and the levels of violence in Strathclyde, and we realised that violence had been chronic and at a high level for some considerable time. We decided that we had to do something different, because the situation had been like that for 40-odd years. The only assumption we made was that what we had done so far had not made any sustainable difference.
That is helpful.
Certainly. Perhaps statistics that I have—particularly those relating to knives and young people, which are relevant to the bill—will put matters in context.
I know that Jackie Baillie has an interest in swords.
It is not a personal interest, I hasten to add. My question relates to a matter that came up at a meeting of the Public Petitions Committee and on which I know the Executive is consulting separately. I am interested in your take on the prevalence of the use of swords. We have heard from elsewhere that, increasingly, swords are the weapon of choice among some of the young men whom you describe. Is that picture accurate? Should we be getting more worried about the damage that swords can inflict?
The long-term issue is that it is people, not weapons who kill people. The short-term issue is that in 2004-05 there has been only one murder involving a sword. That is one too many, but we must put the situation in context. There have been four attempted murders and 23 serious assaults involving swords. Those are the crimes that have been reported, although the numbers from the snapshot perhaps give us a clearer picture of what is happening.
Can you make your question very brief, Carolyn?
Yes. Following on from your point about the number of very young men who are involved in carrying knives—we are talking about 16-year-olds—what mechanism can prevent them from carrying knives and ending up in the situation that the bill will address by increasing the maximum sentence for such offences? A jail sentence would not be an attractive proposition for a 16-year-old, regardless of how long it was. How will the proposed increase in the sentence have an impact?
We will come to that later on, so I will let the chief superintendent reflect on your question.
A study that the committee may know about was conducted by my colleagues in the Glasgow accident and emergency departments in April of last year. It involved an audit of the display of violent attendances in those departments that took the form of a violent assault. As it included only three of the four accident and emergency departments in Glasgow, it represents an underestimate of what happens there.
That is immensely helpful. The committee has seen a submission from your colleague, Mr Rudy Crawford, in which he refers to "other sharp instruments". You mentioned them, too. Are these other instruments a significant dimension in the figures you quoted?
The figures are for all crimes perpetrated with sharp instruments. They do not differentiate between swords and knives, nor do they differentiate what might be described as fighting knives. The issue for us is that if you go out on Friday and Saturday night armed with a knife, you put yourself at risk of committing a knife crime. By chance, that could be the crime of murder. Of course, at the end of the knife is a victim. In the long term we need to tackle knife carrying; in the short term we need to reduce the level of violence in our society.
Mr Murday, I have the same question for you as I had for a number of people, but I come at it from a different angle. Could you explain current hospital practice on reporting knife crime? When might the police be informed? Would they be informed at all? What impact does that have on statistics?
I am not in a position to say. I am not an accident and emergency doctor and I do not know what current practice is across accident and emergency departments. We are looking to co-operate with the violence reduction unit to provide more data. There are data already. In Cardiff, there is a scheme whereby, without divulging confidential information about the victim—because we are dealing with the victim rather than the perpetrator—certain information can be passed on to the police, which can direct their efforts to particular areas. We are hoping to be able to do that. It requires rather more information technology than we currently have in the accident and emergency department, but that is another issue.
From my own investigations, it seems that most health boards think that it would be a direct breach of patient confidentiality to report that information to the police. Do you support that view?
Without the victim's consent, I would have difficulty reporting an incident to the police, yes.
Is that a generally held view?
Yes.
Bearing in mind the research that I have just mentioned and Mr Murday's response, would it help the police if they got general information about the incident, as happens in Cardiff, so that they could direct resources? Should they also get detailed incident-by-incident information?
Absolutely. However, we do not need to address third-party reporting and the confidentiality issues because we already recognise them. We had a very effective exchange of information with Professor Jonathon Shepherd in Cardiff, who devised a questionnaire with 10 questions asking where and when the incident happened, the postcode of the area and whether drink was involved. That information helps to direct resources. Mr Murday quoted from a study: it is interesting to note that we reckon we record just over a third of the violent incidents that turn up in accident and emergency departments.
Dr Crawford has said that the true prevalence of knife crime is two to three times what the statistics show. I think that that is the figure you mentioned. Evidence from another health board suggests that they believe that the Data Protection Act 1998 means that hospitals cannot legally report any medical information to the police, including that on gunshot and knife injuries. Is that the case?
No, absolutely not. Hospitals report firearms injuries; that is a public safety issue. We must deal with the context of 21st century Scotland and the problems that exist therein. In speaking to doctors and health professionals at all levels, I sense a willingness to get around the problem and an understanding that we have to do something about it.
From my own research, I was surprised to find out that it is not mandatory for hospitals to report gunshot wounds—that is a General Medical Council guideline. That organisation has a working protocol with the Association of Chief Police Officers in England, which is where the idea of such reporting comes from. Would the police—and medical staff—support the mandatory reporting of gunshot and knife wounds?
That would be desirable, but we have to get past a few milestones first. The first is that we must have some of the information from the contain and manage section of the strategy so that we can deal with things now and direct resources. That would contribute to identifying exactly what we need to do in the longer term. If we base strategies on one-third knowledge, we could be wrong. We spend a lot of money on strategies that are based on one-third knowledge.
To make it clear, the information that the police require to direct resources does not need a divulgence of patient confidentiality or a breaching of patient confidentiality. The police need to know that a crime has occurred, where it has occurred, the connected circumstances and a name.
Does Victim Support Scotland hold a counter view? Obviously the individuals in question would be victims of crime. Would forcing them to divulge information be against their rights, or would you support the claim that a broader issue is involved?
For a start, there should be support mechanisms to allow a victim to report a crime. After all, if victims do not do so, they must feel that they have very good reasons for that. We should seek to provide them with information in emergency rooms, police stations or any other location in the community to assist them in making their decision. When a crime is reported, it is often a case not only of investigating what happened but of seeking to reduce the potential for another crime to take place.
I must move on now.
I thank the witnesses for their evidence so far. It demonstrates the need for the Parliament and the Scottish Executive to tackle the knife-crime culture in so many communities, particularly in the west of Scotland.
If you ask the question, Mrs Craigie, I will direct it to the right witness.
Thank you, convener.
I ask Mr McKenna to lead off the response to that question.
I suppose that, if this were 1905, we would not be discussing the need to change the legislation. However, this is the 21st century. There should be very few circumstances in which ordinary people need knives in their pockets to go about their lawful business. Similarly, I can think of very few cases in which 16 to 18-year-olds should have the right to carry knives. As a result, we certainly welcome the proposal to raise the age limit for purchasing a knife.
Does the bill go far enough?
It is a difficult area. The bill goes far enough for the moment, but we will need to see what impact the legislation has. John Carnochan and Andrew Murday asked whether we have enough information to know the extent of knife crime in Scotland. We are not sure that we have that information, so we might not have the answers. However, there is common sense in the proposals and the people of Scotland will support them.
Chief Superintendent, what is the likely impact of the proposals in the bill?
There is no single solution to the challenge that we face. We say that it is a case of 1,000 small victories. I think that we have about five under our belt so we are halfway there.
In terms of the—
I want Mr Murday to give the medical view.
I agree with John Carnochan. The fewer knives are available, the better. I leave it to others to decide whether the legislation goes far enough, but there are shops around Glasgow Central station that sell knives that have no purpose other than to threaten people. If it was possible to legislate to close such shops, I would support that.
John Carnochan supplied the committee with a note on the issues that he wanted to draw out. Will he explain what other measures he would like to see in the bill and will he comment on whether 18 is the right age limit and on the proposed increase to four years of the sentence for carrying a knife or an offensive weapon?
I will take the last part first. The increase in the sentence to four years will send out a signal but first it must be used. We must think about the notion of visible justice—I think someone mentioned that earlier. If there is no visible justice, there is no reward for obeying the rules in society—one does not get an extra library card. We promise that, if people do not obey the rules, there will be punitive action. If people do not obey the rules but no punitive action is seen to be taken, we are reinforcing the negative and violence becomes the norm. People think, "That is what happens in our community. That's why we don't report it. That's why we carry knives. That's why we assault people," and resorting to violence is seen as a legitimate way of resolving business.
So, would you like the bill to be toughened a bit in that respect?
It would be helpful if that was built into the bill. We accept that the offender may be a young man who has been led the wrong way—such things happen. However, the second time that the offence is committed, we have a duty towards not only that individual, but everyone else who has a right to live in society without the fear of being stabbed.
Carnochan's charter.
It is great that we are doing something, but there is a notion that the bill is an add-on—that it is piecemeal in its definitions and so on—which makes things difficult. We appear to be challenging things around the edges. I am realistic. I would like people who have been caught carrying or using a knife to be prohibited from ever carrying a knife again, with a mandatory sentence attached.
You make an important point, and the committee is not unsympathetic to the idea that we should keep the law as clear as possible. You say that you would like the legislation to be shuffled and redealt. Do you think that the bill is peripheral in dealing with the issue or, given the reality of the complexity of the law as it stands, are you saying that we should get on with the bill?
I think that we should get on with the bill. It is of its time—it is a contemporary bill that suits 21st century Scotland and it is welcome. Some may say that we are tinkering around the edges, but it is one of the 1,000 victories that we need. It is a start.
Okay. Have you finished, Cathie?
I have finished. I am conscious of the time, convener.
I have a quick question for Mr Murday about the recording system. There was obviously a problem with the recording system in A and E—I think that you said earlier that you worked in A and E. I understand that a new recording system was introduced in May. Do you think that it will help or hinder the recording of statistics for A and E? I have received contradictory evidence from different health boards.
I think that the new system will help, when it is working properly. My understanding from Dr Rudy Crawford is that the system at Glasgow royal infirmary is not yet quite as good operationally as it might be; nevertheless, it will help. The data from April were recorded by hand by the clerks at the start of the triage. At the moment, it would not be possible to run the system that we talked about as part of the violence reduction unit's programme—it would not be easy to give it that information. However, when the IT systems are up and running—and I am reasonably confident that they will be, as is Rudy Crawford—it will be relatively easy to download information about patients in a way that avoids breaching confidentiality but provides the police with the information that they need.
I repeat my earlier question. Our jails are bursting at the seams and it is not clear to me that the mechanism of increasing the maximum sentence will affect the people that you have described, who do not set out to be murderers. How do you see that mechanism working to reduce knife crime and the number of incidents that you encounter in hospitals?
Is that more a question for Detective Chief Superintendent Carnochan, Mr Paterson and Mr McKenna?
I am interested in Mr Murday's view.
Increased sentencing is one small part of the process, and it brings to the fore the fact that knife crime is a serious issue. There are huge issues around social deprivation, alcohol and drug abuse, and educational opportunities. These folk are spiritually deprived. The victims and the perpetrators are much the same bunch: they are tragically deprived, and those issues need to be tackled. Increased sentences are one way of bringing the issue to the fore.
Prior to working for Victim Support, I was a social worker and spent time working in Greenock prison. I have fairly extensive experience of working with the type of young men we have been talking about.
If I may hedge my bets, the answer is never either/or. The most recent stats from the Executive show that 41 per cent of the prison population is in prison for violent crime. The debate is not about violent crime but about whether the people who are in prison need to be there. The argument is that there are lots and lots of young men whom we can save and that we should try to do that. However, the ones whom we cannot save need to go to jail—it is as simple as that.
Mary Hepburn has been sitting waiting patiently to speak—you deal with another expertise. Do you want to make a general comment?
No. I am aware that I am here for a specific bit. I do not need to comment on any of the other issues.
That is fine—I did not wish you to feel silenced before all these gentlemen.
Thank you for your consideration. I know my place.
We will move on to football banning orders.
I will have to keep Mary Hepburn waiting a little longer.
I think that they will. We must consider the wider context. Right now, we risk assess. We are getting used to and becoming better at collaborative working and joint risk assessment models. Whereas we risk assess paedophiles now, I suspect that it will not be long before we assess dangerousness. That is part of the preventive notion, although it is not the one solution.
However, a football game could be a catalyst for many people. Throughout the 1980s, those who were behind much of the organised hooliganism at football games were not violent characters, although they had violent mentalities. The bill has a slightly different emphasis in, in effect, removing some people from football matches. Is one of the concerns that there could be displacement? If your judgment is that they are violent characters, the concern is that if they are not at a football game, the violence will be displaced.
But you could probably use that argument against most things. We are saying that if alcohol facilitates violence, we will limit that; if knives facilitate more serious violence, we will limit that; and if the venue is likely to be a football match, we will limit that. Those measures will not solve the whole problem, but they will start to limit the problems.
Would Mr McKenna or Mr Paterson like to respond to Mr Purvis's question?
Could Mr Purvis remind me of his first question?
The first question is whether football banning orders will make a difference in reducing violence.
Let us keep it that simple. We will ask one question at a time, because I am slightly losing the thread.
People who go to football matches to enjoy themselves have a right to do that. If other people are determined to disrupt their enjoyment and to commit offences and crime at football matches, it is legitimate to address that. The bill is complex. I cannot comment on whether the provision will work in entirely the way in which it is set out in the bill, but it is justifiable for the bill to provide that people who demonstrate that they cannot behave in an environment will be excluded from it.
You may put your second question, Mr Purvis.
Is there the potential for displacement, if we are talking about violent characters?
I agree with John Carnochan. It is difficult to track displacement and to establish whether it is imaginary or real. Currently, there is a challenge for us at football games, and we should try to address that issue.
That was straightforward.
I do not think that anything is irrelevant. Anything that takes us in the right direction is worth while. We must then consider the proportionality of how we implement the measure and get into the long grass of how it will work. Football matches are now so well policed and are so well legislated for that there are seldom issues at football matches themselves. Invariably, problems arise around the match—outside or in pubs and houses not far away. The displacement issue could also be raised there. However, nothing is irrelevant; the issue is the proportionality of how we make the banning order work.
On the 24-hour period before and after a football match, is it necessary to have that boundary in place given that football-related violence can happen not only around a football match but at other times when football happens to be on television? Such violence might not relate to a live game. There could be a football-related dispute in a pub. Where would you draw the line?
The banning order may have a rehabilitative effect. I am sure that the fan would rather be at the ground watching the football with his mates. The banning order is specific to that and states that they cannot go to the match. The notion would be that they could go back to a football match again if they behaved.
Is the 24-hour proviso restrictive? Will it impede the ability of the police to act?
I have not given enough thought to that specific issue to say exactly how we would oversee the banning order and how we would ensure that it was effective. There may an opportunity for someone to say, "I have a 24-hour ban, but I will manage to go to the match anyway."
The provision is that the offence must take place within a 24-hour period before or after a match. If an offence takes place 25 hours before the game, the crime will not be related to the game.
Hang on. I think that the questioning has not been clear. Under the bill, if an FBO is sought following a conviction, the offence to which the proposed FBO relates must have been committed no more than 24 hours before or after a football match. Is that too restrictive?
It would be difficult to prove otherwise. The 24-hour time limit is one way of making it easy to prove that a particular bit of violence that happens many hours before a football match is related to football. If the timescale was made wider than that, we would need to think about how we could relate the offence to the football match. I think that such offences could be related to football, because I know that violent people are violent people, but that is the reason for the 24-hour limit.
Does Victim Support Scotland have a view on the matter?
People's behaviour in the lead-up to and wind-down from football matches can be an issue. I suspect that most offenders will be caught in the four or five hours—rather than 24 hours—before and after a match. The 24-hour limit is just a determination of the period within which the majority of people will be caught.
As there are no more questions on that issue, we will move on to consider the provisions concerning mandatory drug testing and assessment.
The bill provides that people who are arrested on suspicion of drugs offences may be required to undergo a mandatory drugs test and assessment, although participation in treatment would be voluntary. Do you have any concerns about those proposals? In particular, does Mary Hepburn have any concerns, given some of the cross-over between the client group that might be affected and the people whom she deals with?
In the first instance, we will ask the Detective Chief Superintendent Carnochan for his view before asking Mary Hepburn.
I think that, as Mr Scott alluded to earlier, the question is about interference versus intervention. It is right that we have the notion of wanting to do something good, but the question is whether the proposal constitutes too much of an interference—that notion needs to be taken into account as well. I believe that anything that directs people away from drugs and serves as a trigger—other than a criminal justice trigger—to get them into rehabilitation or to alter their behaviour has to be a good thing. I recognise that there is a need for balance and proportion, but the proposal has to be a good thing.
If the measure is created as intended by the bill, will it pose practical challenges for police officers?
I think that the practical challenges are more likely to be about whether we have sufficient capacity in the support that we give to people who go through the process. The question will be whether we have enough people in place who can provide drug treatment and testing. The issue will be about capacity, but I am sure that we will able to deal with that if the measure is passed.
Drug use during pregnancy is harmful for mothers and babies, but it really just adds to the more important underlying effects of poverty and deprivation that have an impact on mothers and babies. We know that poverty increases the maternal mortality rate between twentyfold and thirtyfold. It is also responsible for many pre-term and low birth-weight deliveries. Such a delivery may not only result in ill health and death for a baby but contribute to ill health in adulthood and so perpetuate the effects. It is important for us to identify any factor that will affect pregnancy, including drug or alcohol use.
I do not know whether you will be able to answer this question as it goes outwith your patient group. From a practical and medical standpoint, can we cope with the bill's general proposals on what the police should do when they intercept anybody who is suspected of using or possessing drugs? I pose that question to Mr Murday as well. The bill creates a structure that will oblige the police to take action in certain circumstances. That action will include assessment and referral. Can we cope with that? Are the practical medical facilities there?
One of the difficulties of testing everyone is that that will not really tell you much about their drug use. It will simply tell you that people have used the substance within a given period of time. It will not distinguish between low-level recreational users and people with a significant problem. To oblige everyone to go on to some kind of conveyor belt for treatment would not be helpful. The services would be flooded. It would be much better to target treatment at those who really need it.
I do not claim any expertise but I will comment on the principle of action and reward. There would have to be some passage out of testing and some sort of assessment. People should not automatically go on to some vast drug-rehabilitation programme; the next stage would have to be some sort of assessment of their drug use.
But if you have to assess everybody who has used any kind of illegal drug, it would swamp every service. On the health side, we try to help people to change their behaviour. It is more appropriate to do that with people's co-operation, rather than take a punitive approach.
Previous witnesses have talked about the resources that will be available to allow the police to carry out the obligations that will be placed on them. There is a fear that resources will be sucked away from existing programmes in order to deliver the legislation.
As I have said, resources should be aimed at helping people who have major problems. Resources may not get rid of a problem, because lots of health conditions cannot be cured, but we should be trying to limit the damage that unhealthy lifestyles causes people. We need all the resources we can get for that.
I have a question for Detective Chief Superintendent Carnochan. The response to a question that I put to earlier witnesses was that, when you come into contact with people who are suspected of drug-related offences, you find that you already know most of them. How many new people will testing allow you to pick up and help?
The thing about criminal justice radar is that we wait until people are broke until we try to fix them. The notion behind mandatory drug testing was that we would be able to divert people into a different lifestyle.
Drug testing will not hit the whole country at first; it will be piloted in four areas. What would you like to see in the pilots? Which of the witnesses wants to put their head above the parapet first?
We will be involved in the first stage of the process. The parameters of work in the pilot areas—age groups, offences and so on—will need to be very clear. I am sure that there will be great support for the pilots, in terms of resources and capacity, so there needs to be robust evaluation before anything is rolled out. There are many pilots, and they do not often fail—that is just a view.
Aims and objectives depend on circumstances. Initiatives that are carried out through the criminal justice system tend to be about ensuring that people are totally abstinent. In health care, we do not have a good track record of getting people to give up their unhealthy lifestyles completely. In fact, we have a 100 per cent failure rate. In the maternity setting, we do not look to ensure that women are absolutely abstinent; we are trying to get a healthy outcome. If the whole focus is on urine screening and detecting every bit of illicit drug use, we will alienate a population that is already highly motivated to work with us and towards behavioural change. Confusing that outcome with the alternative approach—trying to achieve total abstinence—would be unhelpful. In the maternity setting, I do not think that it is necessarily a criminal justice issue.
That is interesting, as I was about to ask you how the health service and the criminal justice system can dovetail on the issue. Clearly, you have different perceptions of how drug or substance misuse should be dealt with. How can the two sectors come together?
Mary Hepburn is the obvious person to respond.
I can speak only with reference to our current involvement with the criminal justice sector. There are times when what may appear to be a helpful intervention or route—for example, DTTOs—is not necessarily helpful, because such interventions are aimed at ensuring abstinence and preventing people from doing whatever illegal thing they are doing, whereas we are trying to minimise harm. We have a great deal of evidence that people change their behaviour only when the time is right for them, they feel good about themselves and they can do it. We have shown that we cannot stop women smoking during pregnancy, although everyone knows about the harm that that does, and that we cannot get them to eat properly—they just carry on with their bad behaviours. I am not sure where the criminal justice system can assist us in that. In my specific setting of maternity care, such an approach disrupts care more often that it offers us something positive. I am sure that in other settings it would be quite different.
I want to clarify something. You are confronted with a clinical situation and a professional obligation in which the primary imperative does not relate to drug addiction. However, drug addiction may be relevant to how you deal with your primary clinical obligation.
We see drug addiction as another factor that will adversely affect people's health. My professional responsibility is to try to get the best possible outcome to pregnancy. We deal with drug use in that context. It is not helpful for us to deal with it as an illegal activity in that setting; indeed, that can be counterproductive.
In your view, the criminal justice system should take more cognisance of what the health service is trying to do in such circumstances, rather than the other way round.
I think so. My concern about drug use is that it is killing people and making them ill. We want to minimise those effects.
You are saying that what is proposed in the bill might not be helpful.
It might not.
Jeremy, you will have to be very quick.
I will try. The assessments will be for people who have been arrested for an offence as laid out in the bill—assault, robbery, theft, fraud, embezzlement and so on. A drugs assessment will be mandatory. However, section 76(3)(c) refers to
First, Mr Purvis, the measure relates not to any offence, but to drugs-related offences.
It is a trigger offence. The new section 20A(8) under section 75 refers to "a relevant offence".
Which is drugs-related.
A relevant offence as defined under section 75 means any of the following: theft, assault, robbery, fraud, reset, uttering a forged document and so on. That is outlined in paragraphs (a) to (k) of the new section that section 75 will insert into the 1995 act.
Irrespective of what the offence is, it would be helpful—or, rather, it would be not counterproductive—to redirect the women back to the counselling and addiction services that are part of their multidisciplinary care. It would not be helpful to put them into separate abstinence-based or abstinence-seeking services that operate under the criminal justice umbrella. The best thing to do is to check that the woman's drugs use is known to the maternity services and to ensure that she is getting assistance with it. It would not be helpful for the woman to go into another channel as well as ours.
We are nearing the final furlong. Section 88 sets out a system whereby a person might receive a reduced sentence or immunity from prosecution in return for co-operating with the prosecuting authorities. I suspect that that is not an area on which all our witnesses will have a view. However, has the chief superintendent any concerns about that proposal?
I do not know whether this will bother John Scott, but I agreed with much of what he said on the matter. It is important that there is openness and transparency in the system and in the prosecution and defence.
Does Victim Support Scotland have a view about how the measure might be viewed by victims in particular or by the public in general as they look at the criminal justice system?
Neil Paterson will probably want to say something, but the starting point is that, when participating in the criminal justice system, victims want a conviction; they want the person who committed an offence against them to be found guilty. Immunity has wider implications. John Carnochan and John Scott both talked about openness and transparency, but where is the openness and transparency for the victim of crime? The case is all about them.
It might be helpful for the committee to bear in mind two principles in thinking about that provision in the bill. One relates to transparency and consistency; the other to proportionality.
As there are no further questions, I thank all our witnesses for being with us and for their patience. I apologise for the fact that you have been through a diverse session. However, you have been very helpful in informing us on different aspects of the bill. We appreciate your making time to join us this afternoon.
Meeting continued in private until 16:45.