Criminal Justice (Scotland) Bill
Good morning and welcome to the 44th meeting in 2002 of the Justice 2 Committee. As usual, I ask members to switch off their mobile phones and pagers.
Item 1 on the agenda is the Criminal Justice (Scotland) Bill. The committee agreed earlier to take evidence from the Deputy Minister for Justice on section 61, which relates to police custody and security officers—PCSOs. The minister has asked to make a brief opening statement to update the committee on developments, which I will allow him to do. I welcome the minister and his large team.
I have taken careful account of members' contributions during the stage 1 proceedings and of the committee's stage 1 report. Pertinent points were made and we will lodge a series of amendments that will, I believe, take account of them. I will describe those amendments in a moment.
Before I do so, I want to mention the apparent misunderstanding that has arisen over the context and purpose of section 61 and its relationship to separate work that is being done under section 102 of the Criminal Justice and Public Order Act 1994, which gives the Scottish ministers powers to make arrangements for certain functions to be performed by prisoner custody officers. Those powers include entering into contracts with other persons for the provision of such officers.
The functions that prisoner custody officers may perform are:
"(a) the transfer of prisoners from one set of relevant premises to another;
(b) the custody of prisoners held on court premises … and their production before the court;
(c) the custody of prisoners temporarily held in a prison in the course of transfer from one prison to another; and
(d) the custody of prisoners while they are outside a prison for temporary purposes."
The tender process to contract out the escorting of prisoners, which is led by the Scottish Prison Service, is being carried out under the 1994 act and is not related to section 61 of the bill. That distinction was not understood clearly by some members during the stage 1 proceedings.
At stage 2, we will lodge a number of amendments to section 61 to meet members' concerns. I will speak about two of them. One would insert a new duty for PCSOs in new section 9(1E) of the Police (Scotland) Act 1967, which can be found on page 58 of the bill, to act with a view to preserving good order on the premises of any court and on land connected with such premises. PCSOs, who would be employed by police forces under the chief constable's direction, would, backed by appropriate training, deal with public unrest in courts, but those public order powers would not extend beyond court premises. The maintenance of public order in other areas is properly a matter for constables. The second amendment would require police authorities to obtain the approval of the sheriffs or sheriffs principal in their force area—in the case of the High Court, the approval of the Lord Justice General—prior to contracting out court services under section 61.
Those amendments are in addition to the Association of Chief Police Officers in Scotland's commitment, under which chief constables will seek to agree a protocol with the courts on the operation of the new arrangements. We have already consulted the police conveners forum and ACPOS about the new measures. We have also broached the proposals with the Sheriffs Association and the Lord Justice General. The initial response has been positive, but obviously those who are involved want to see the wording of the amendments.
We recognise the concerns that were raised and we have acted to address them. Section 61 is not, as has been suggested, about policing on the cheap; it is a genuine attempt to secure better value for money in the delivery of certain policing services. The proposal would result in a trained group of officers who would have specific duties in courts. The existence of such officers would mean that, where it makes sense to do so, constables would be freed up so that they could be redeployed to other front-line duties.
The committee has a number of questions, so let me begin. During the stage 1 debate, I raised a number of concerns about how the Executive's objectives will be met. As the minister said in his opening statement, one objective is to make savings through the creation of the new posts. We have yet to hear any evidence as to what savings could be made.
I also note that among our committee papers today is a letter on behalf of ACPOS from William Rae, who is the chief constable of Strathclyde police. He says that we cannot see the figures yet but that they will be prepared for the committee to have a look at. I am greatly concerned that savings cannot be identified at this stage, yet those savings are one of the main objectives behind the proposal. If the minister does not have a copy of the letter, I can pass one to him.
I have a copy of it.
There are two policy objectives, one of which is certainly that we would like to make savings if at all possible. However, equally important is the fact that police officers undertake a significant number of functions, especially in courts, that are not what might be called police functions but administrative functions. Further, under the existing arrangements, prison officers and police officers are involved in escorting prisoners and others between police stations, courts and prisons, which has led to duplication and overlap.
Let me give an example. Ten prisoners are held in Edinburgh prison and are due to appear in Edinburgh sheriff court on the same day. Eight are on remand and two are convicted prisoners. Two minibuses must attend the prison: one minibus will be staffed by SPS officers to take the two convicted prisoners; the other must be staffed by police officers to take the eight who are on remand. The police minibus will have empty seats. At court, all 10 are kept in the same cells, which are overseen by the police service, but the SPS officers are responsible for their prisoners and must remain with them for as long as they are outside the prison. After all the hearings have taken place, both minibuses must head back to the prison. Depending on the length of proceedings at court, both sets of officers may need to hang about for a considerable time. The police officers may do other things, such as issue lunch vouchers or pursue interpreting or other support services, but the prison officers must simply wait. Among other things, the new arrangements will avoid much of that duplication by ensuring that a single service provider does everything.
The issue is not just about savings. Members may recall that an earlier Executive memorandum said that there might be overall savings of about £12 million, which could result in the redeployment of 500 police officers and 200 prison officers. The memorandum made it clear that those savings were only initial estimates and certainly should not be taken as if they were written on tablets of stone. We have commissioned consultants to examine the issue in greater detail, but we do not have their report yet.
I appreciate what the minister has said, but perhaps he could look at the issue from the committee's point of view. The bill that we have been asked to examine would take powers away from the police and give them to a new breed of custody officer. Part of our role is to test what savings could be made, yet we still have no figures. I will leave that issue, as I think we will get no further forward on it.
I note the minister's comment that the number of officers that he claims could be freed up is only an estimate. I have asked for assurances from the Executive that any officers who were freed up would be additional officers for the force concerned. We need a bit of detail on the extra number of officers that a force such as Strathclyde could expect. The bottom line is that, if the savings were relatively small and there were no guarantees about the number of additional officers that would be available to the force, the exercise would be pretty pointless as there would be no marked benefit. I am driving at the fact that the committee has not been given an indication of the benefit of section 61. We are being asked to support the proposal on a wing and a prayer and we are told that the savings and the numbers will become apparent in future. I would be unhappy to let section 61 through as it stands.
I understand the convener's caution on the subject. Two policy objectives are involved. I will give another example. In Fife, risk assessments are being undertaken routinely for sheriff and jury trials. Before risk assessments were undertaken, two officers would have been allocated to the court for the duration of trials. In the Fife constabulary central division area, during the period 1 March to 6 September 2000, a total of 38 days of sittings took place in Kirkcaldy. Under the previous system, 114 officers would have been required to attend, but the risk assessment process reduced that number to 75.
I give that example to show that the situation is already moving forward. We are trying to give chief constables additional powers so that they can be flexible in their management. One of our problems is that police officers have been required to undertake numerous administrative functions rather than concentrate on proper front-line policing duties. Duties remain for court order, which sheriffs want to be satisfied about, but many other functions have nothing to do with order and can be better undertaken by an administrator with more limited powers.
I ask David Henderson to tell the committee a little more about the process. He will also indicate some of the functions that we have discovered are being undertaken by police officers and that we would like to address. I hope that that will be helpful.
David Henderson (Scottish Executive Justice Department):
I will start with the activities that police officers undertake not necessarily in all courts, but across courts. I have three pages-worth of activities. They include: managing first aid; notifying court officials of prisoner arrival and availability; serving legal documents; managing the list of witnesses; recording the attendance of witnesses; dealing with inquiries from members of the public; managing telephone inquiries; administering the paperwork that is required by the procurator fiscal and clerk; pursuing solicitors who are required for the court; managing and sorting out the court running order; issuing the accused with notes of future court dates; preparing bail papers; and managing prisoners' property and its safe return. In Glasgow sheriff court only, police also issue lunch vouchers to police witnesses, to which the minister referred.
I will describe the process and the figures. Two separate processes are under way. The first, as the minister described, is a tender process that is being conducted under the 1994 legislation. Tenders are being prepared as we speak. They will not be submitted for another week or so and, once they come in, they will have to be evaluated. It is difficult to quantify the savings until we see the tenders. It would also be improper to speculate on the figures until we have seen them. We will need to check carefully that the tenders represent value for money. There would be purpose in going ahead only if the tenders do so. I repeat that, at this stage, it is difficult to speculate.
Initial sums were done a year or so ago. They are referred to in the Executive's memorandum, but they are very much estimates and were based on partial information. That activity analysis was redone by the police service during September and October. As the minister said, the results are being quality assured by consultants. We will have those results within the next week or two and they will give us estimates that are as good as we can get of current activity. We will be able to compare those estimates with the prices that will be set out in the tenders. We need to check that the proposal offers value for money. We will not go ahead until we are sure of that.
The second process involves the additional benefits that section 61 would bring, which will depend on the protocol that is drawn up between each force and the sheriffs principal in the court service in its area. Each case will be considered on its merits. We need to work on those aspects together.
If we gave you a precise figure—we could estimate—it would probably be misleading until we had firmer figures. We should have those figures, or a better indication of them, before the committee considers the matter formally once the amendments have been lodged.
I would like the minister to clarify two points. You talked about savings. The convener has alluded to the fact that the committee is seeking a guarantee that the police officers who are released from court duty will be redeployed immediately to front-line services as an addition to existing front-line officers. I also invite you to comment on interesting evidence that we received from the Scottish Police Federation, which seemed to say that police officers who undertake court duties may not be physically fit enough to carry out front-line duties. Can you clarify the position on that? Clearly, there must be a question mark over the ability of those officers to control any outbreak of disorder in the courts if they are not fit enough to carry out front-line police duties.
I will address your first point first. This year, police grant-aided expenditure is £822 million. Next year, it will rise to £889 million, and by 2005-06 it will have risen to £998 million—an increase of more than 20 per cent. We can look retrospectively to get a feel for the situation. Police numbers are at record levels—up 540 since June 1999. If we add those who have been, or will be, redeployed to front-line duties as a result of the best-value reviews and modernisations that are taking place, the total will increase by about 1,000. The intent is there. However, it is for the chief constables and their boards to manage those resources, not for the Scottish Executive. I hope that, within that funding arrangement, it would be feasible to achieve increased numbers of front-line staff, which is the Executive's policy.
The Scottish Police Federation's evidence was interesting. It contrasts with the evidence of the sheriffs, who say that they want to be secure and to have fit police officers in courts. That is an important point, and our amendment would require the sheriffs principal to agree to any contracting-out process. We need to look more broadly at the police occupational health system. The police force has relatively high sickness levels, and a major thematic review in England has focused on occupational health. Rather than place unfit police officers in the courts, the police force must prevent ill health and manage people who have health problems, bringing them back to front-line duties whenever possible. It would, of course, be impractical for somebody who was no longer fit for front-line duties to apply for a transfer to become one of the new PCSOs. I presume that such applications would be considered on the basis of whether the officer could provide the service that was required.
The more I hear about the proposal, the more concerns I have. I do not disagree with the Executive's stated intentions; I am trying to get at the practicalities. From what David Henderson says, it seems that you are asking the committee to agree to a power without really knowing what will happen thereafter.
Concerns have been raised by many groups about the lack of police presence in court if police officers were replaced with custody officers who would not have the same powers. Should there be a minimum police presence, in a mix of custody officers and police officers, to satisfy all those who work in the courts—such as sheriffs, procurators fiscal and defence lawyers—that there would still be an adequate police presence in our busy courts?
I am being slightly repetitive, but the central objective is to loosen up the system to allow the chief constable to manage it. Clearly, it is important that courts are properly policed, so it is not the intention to direct chief constables that they should take all police out of the courts. That would be wholly inappropriate. It will be a matter for the chief constable, in discussion with sheriffs and the sheriff principal, to ascertain the necessary levels of police or new custody officers. At the end of the day, I expect that there will be a mix of the two.
The important point is that the functions of PCSOs, to which we have referred—and the other two and a half pages of functions that we have not read out—are essentially administrative duties, and are not serious policing duties. I am not saying that they are not serious duties—they are—but they are administrative duties, and therefore can be properly undertaken by somebody who is qualified to do the particular task. That may not be someone who has police qualifications, because it perhaps requires a different set of skills. The process is one of loosening up.
I quote from the 2000-01 annual report from Her Majesty's chief inspector of constabulary, which is probably in the public domain:
"The movement of persons in custody between police stations, courts and prisons need not be undertaken by police officers and more efficient, but no less effective, means are available."
To achieve that, the combination of the Criminal Justice and Public Order Act 1994 and section 61 of the bill provides an appropriate way to take the issue forward. The chief inspector urged us to take this matter on in his 2000-01 annual report, and this is the earliest opportunity for us to do that.
I am of the view that some of the clerical duties that Mr Henderson read out are a bit of a red herring. I do not think that they are at all onerous. Let us take, for example, a diet court and a first appearance when no one is in custody. The police officer stands at a desk. The accused pleads not guilty through his lawyer. A trial is fixed. The officer simply writes out a card and hands it to the accused as he leaves. That is hardly onerous. The number of bail forms that are required to be processed in the average court is limited.
Moreover, what clerical duties does the officer have in a trial court? Basically, all he does is go out and get the witnesses and come back in again. It is important that police officers are there for the security aspect. In the course of a trial, there may be witnesses who have just given evidence sitting in the court and they may take great exception to the evidence that is given by the next witness. However, it is important that a police officer is present to defuse that situation. I do not see any of the other people who the minister has in mind—bearing in mind the quotations and estimates that the minister has sought—being in a position to have the degree of authority needed to defuse situations that arise.
There is not a lot of clerical work involved. The police officer would be quite able to carry on with that while supervising the court. In a trial court during the course of a day there may be a throughput of about 25 people at most over a four or five-hour period, so I do not see that there is a difficulty.
Bill Aitken raised two issues: security and administration. It is important to recognise that PCSOs will be uniformed. They will have a presence. They will be trained. They will carry out the functions that are required of them, including the functions that you mentioned. When those functions are combined with administrative duties, however much the load is—and I bow to his greater experience—the advice that we have received is that the new officer would be an appropriate person to undertake those additional functions.
A straightforward police person could be moved away from the court into other police duties, as indeed happens—I cannot believe that they would be left in courts for ever and a day. Police custody and security officers would be dedicated to the court and therefore would provide continuity, which would be welcome and would increase efficiency.
There has to be a security protocol with the sheriff or sheriff principal or, in the case of the High Court, the Lord Justice General. There must be protocols to ensure that the judiciary is satisfied with the level of security. There will certainly be no changes until that protocol is agreed.
That is helpful, but do you not think that, when it hands over such an onerous power to chief constables, Parliament should be satisfied that it will have some say in the minimum numbers of police officers and in what should be contained in the protocol? If such a provision were passed, I would be keen for there to be a mix, but we would be handing over that power to chief constables and they could decide to do what they like. There is no guidance from Parliament to reflect the concerns that others may have about the lack of a police presence. Although we have listened carefully to prosecutors and sheriffs who have concerns, we have not had a chance to speak to victims or people who use the court. I do not know what they would say, but we must try to represent them to some extent.
That last point is a good one. I would expect police custody and security officers to be well trained in managing witnesses and victims. Police who are involved in that area of work should have a degree of expertise that the average policeman who might just be passing through the court system for a few months might not have.
At the moment, it is the chief constables who determine what goes on within the court, so they already have that power. The only change that we are making, as I understand it, is that we are giving them power to create special officers who will have a special function within the court. They may choose not to do that, and that is a matter for them, but the intention is that that will happen. Part of the review carried out by the inspectorate will be to ensure that they meet best value, so there will be a dynamic tension between the chief constables and the inspectorate, and indeed any guidelines that the Scottish Executive may choose to issue.
Although we have not yet been able to describe in as much detail as we would like the possible savings, I hope that the committee will accept that the administrative and policy objectives of flexibility are equally important. I began with a point about witnesses and victims, and that is important. I expect that the police would get considerable training in ensuring effective support for those groups as we move forward with our "Vital Voices" consultation on vulnerable witnesses.
I apologise to the convener and the minister for being slightly late.
I have a number of questions relating to the initial evidence that we got from the Scottish Police Federation, which also raised the question of training that we have just touched on. If I heard you correctly, minister, you said that you think that the new officers would be in a better position in terms of training, because they would have more expertise. What additional training are you talking about? The Scottish Police Federation was concerned about the amount of additional money that would be put in to cover that cost because, as you know, police budgets are already fairly strapped.
How does that relate to anything that might be covered by Lord Bonomy? Questions were raised about the dignity of the court. That sounds terribly grand, but the bottom line is whether people are more or less likely to tell the truth in an environment where there is a certain imposing nature to the court. Would you concede that that might be adversely affected by the proposed measure?
Will you also reflect on the Scottish Police Federation evidence that the court is the one place where tension and discord are guaranteed? It is also the one place where one will almost certainly find a range of people with a criminal background. On that basis, it strikes me as obvious that it must be the most experienced and most highly trained people who work in such situations, which is why the federation felt that it should be police officers who do that work.
The training would be focused on the work that those people would have to do. Police officers have to be trained on the huge breadth of activities that police constables have to undertake. It is the specialist nature of the training and the focus that are important.
How will the training be specialised?
It will be specialised because the PCSOs will always work in the court setting and therefore will receive more intensive training to deal with matters that may arise.
That raises the question why the police are not trained to that standard. How will the training received by PCSOs differ from police training?
Of course police officers are trained, but they are provided with general training that covers a range of activities. If, therefore, they were asked to concentrate on court work, they would need additional training to ensure that they are up to date with court proceedings. However, court work will be the sole function of custody officers and, therefore, they will already have that additional knowledge. They will be focused on one area, which must be a good thing.
I see that I am not convincing Mr Hamilton.
I do not know what you mean. In plain terms, what does "additional training" mean?
It means that the training—
I understand it in principle—police officers receive general training in different fields, and if they are nominated for court work, the training will concentrate on that area. However, what does the additional training mean for those involved? What will they be required to do?
There is a misunderstanding about the word "additional". The PCSOs will be trained for court work only. I assume that police officers who have not done court work for some time get additional training, by way of a refresher course, if they are given that job. However, training for PCSOs will focus on court work, of which I have described approximately one third. Am I making sense?
No, you are not. Do you accept my point about the dignity of the court?
Yes. The custody officers will be uniformed and will be properly trained. I do not envisage there being a major problem with the dignity of the court.
I understand that a pilot scheme is under way in Lothian and Borders, with which there have been no problems.
According to whom?
The on-going evaluations of the pilot scheme have shown no problems thus far.
How long has the pilot been running for?
Two to three years.
The committee is aware of the Lothian and Borders pilot scheme, but it is not aware of the analysis of the scheme.
I assume that the scheme is being evaluated. I will try to provide the committee with further information on how it is working.
Duncan Hamilton's third point was about tension in the court, which links very well to his second point. If the officers cannot deal with issues of conflict and confrontation, there will be considerable trouble. However, they will be trained to deal with such issues.
Will the entry qualifications and calibre of people recruited to be PCSOs be lower than the corresponding requirements for police recruits?
Yes. Section 61(2)(b) inserts into the Police (Scotland) Act 1967 a new section 9(1A)(b), which states that in respect of each of those officers there will be
"for the time being a certificate in force, certifying that he has been approved by the chief constable for the purposes of performing functions in relation to custody and security and is accordingly authorised to perform them for the police force".
I realise that that does not directly answer your question and I am not clear that I have an answer. You are really asking whether the approach to the recruitment of PCSOs in terms of the entry level will be different from the approach taken for the standard force. I do not know; we will need to consider that quite carefully.
The important thing is that the individuals who are employed have to be able to meet our requirements. Those requirements are not just administrative but are additional functions of the type that I have been describing.
I am not sure whether we clarified whether there were additional functions. Leaving that to one side, having established that we are looking at a lower barrier to entry for PCSOs, can you confirm that those officers are likely to be on a lower pay scale than police officers?
I do not accept your premise that there is a lower barrier to entry, because I have not established that. The criteria for acceptance might be very similar to those in the police. They might be comparable but different—I do not know. In respect to your question, I would expect the salary scales to be lower.
With respect, if we are talking about a similar entry qualification and a similar calibre of recruit but less money being paid, it is hard to determine how we would be able to recruit such people, given that we have difficulties recruiting people into the police.
If the entry criteria are not just different but lower, are we not downgrading the ability of the proposed officers to discharge the required duties, by comparison with the ability of the more highly qualified people whom we currently recruit as police officers, who are capable of exercising their initiative?
We are each using different words. You are saying "lower" and "similar" when I am saying "comparable". The criteria are appropriate for the task that has to be undertaken. Someone that might be suitable for recruitment to the police might well be suitable for a PCSO post, but someone entering as a PCSO, with limited roles, might not be suitable to enter the generality of policing. That does not put them on a lower level; it just makes them different.
I accept and will use the word that you are using, which is "comparable".
If we are considering comparable entry criteria—and I think that I am right to say "if" because there are still some questions that are unanswered in my mind and I suspect in the minds of others too—is it reasonable to expect to recruit to an appropriate standard if you expect to pay a lower salary?
It will be horses for courses. People who want to become a court custody officer will apply to become a court custody officer. They will not then have to undertake core police work. They will also not have to work under the same rota system as general police officers—night duty and weekend working. Court work will be limited and therefore it will suit different people. We should understand the differences and, hopefully, you will accept that it is a different job, which the police currently undertake, but which we believe could be undertaken by the proposed new group called police custody and security officers.
Once again, throughout my questioning and that of others before me, we have uncovered areas of doubt, uncertainty and lack of clarity. The minister must reflect on that after the meeting.
We must wind up now. I will take any points of clarification before we finish.
The minister does not know what the entry criteria would be—they might be higher, lower or the same. It is perfectly conceivable and I suspect, given the restricted nature of the duties, likely that the entry level will be lower. If that might be the case, how could he give us an assurance today that the performance of those people will be of a similar or a higher standard? With the best will in the world, I do not think that he has the option of giving us that guarantee today.
All I can do is reiterate the last point that I made. There will be some people who will regard being a police custody and security officer as an appropriate career to pursue, albeit that it is limited within the court function. There will be others for whom police work, with all its variation and the additional core police work, would be an appropriate job. Different people will apply for the different roles.
You are trying to mesh them together and we are trying to separate them to make the system more efficient. I do not follow what you are trying to say. You keep trying to force me into saying that the entry criteria are lower and I will not accept that. I am saying that they are different. The important thing is that when those criteria are established, they must ensure that the individuals who take the job have, or can acquire, the skills that are appropriate for that particular job. Those skills are within the current ambit of total policing but exclude certain police skills.
In conclusion, the committee understands exactly what you are saying about the different nature of the job. The committee would appreciate more information on the type of recruitment practices that are used. We are short on information.
The committee rightly expects that there will be robust recruitment practices, albeit on a different entry level, and that police record checks will be made, of which there has been no mention. The powers that the bill will pass to those officers are extraordinary powers of restraint. I would caution against accepting the lack of information about the kind of individuals who would be recruited for these jobs. We need an indication from the Executive that chief constables will be expected to embark on robust recruitment procedures to get the right kind of people.
I understand where you are coming from, but I emphasise that there will be robust recruitment criteria because candidates must match the requirements of that particular job. It is an important job, but it is different from the totality of policing and therefore the candidates will be different. Recruitment must be robust to ensure that candidates have the skills and are capable of undertaking the work.
The point about police records is understood—I am sorry if I did not make that clear before. Candidates would be subject to checks.
You talked about outsourcing in the early part of your statement. I want to be clear about this: there has been no discussion with the Executive that that duty would be outsourced. What is the position of the ministers? I am reasonably happy if all the issues that are raised by the committee are resolved—I do not know whether they have been at present. I would find it difficult if the Executive were saying that it is up to chief constables to outsource such an important job to a private firm. We have already discussed the robust procedures. Is "outsourcing" just a word that you are using or does it mean something?
It would be up to the chief constable but, under our amendment, they would have to get the approval of the sheriff principal, or the Lord Justice General in the case of the High Court, if they wished to go down the route of contracting out those services. It would have to be agreed; otherwise, those recruits would fall into the category of the civilian part of the police force.
Therefore, it is possible that, with the agreement of the sheriff principal and the Lord Justice General, a private company could operate police custody and security officers who have powers of restraint. Would it not be a departure to pass those powers from public duties into the private sector? Perhaps you could send us an answer to that if you cannot answer now.
As I understand it, the bill would do no more than the 1994 act is doing in relation to the other functions that we talked about. It parallels the act and makes the two complementary.
I give an undertaking that we will examine the debate. It has been useful to understand where the committee is coming from. We will consider the debate carefully and if issues arise that we do not feel we have clarified adequately, we will write to the convener with clarification. There are already points to consider about the analysis of the Lothian and Borders pilot that are crucial to an understanding of the realities as opposed to what we think the situation might be.
Thank you. We will leave it there. I propose a brief break before we return to item 2.
Meeting suspended.
On resuming—