Item 2 is the continuation of evidence taking on the Offences (Aggravation by Prejudice) (Scotland) Bill. Today is the final scheduled evidence-taking session. I welcome again Andrew McIntyre, head of the victims and diversity team; and Linda Cockburn, principal procurator fiscal depute in the victims and diversity team, policy division. Both are from the Crown Office and Procurator Fiscal Service.
Thank you, convener, and good morning. It has been pointed out to the committee by several witnesses that the common law is well capable of dealing with the issues that we have been discussing. Do you agree with that statement in general and, if you do, why do you think that the bill is necessary?
That is right—the common law covers the range of offences that we expect the bill to deal with if it is enacted. The bill does not propose any new offences, and we will continue to prosecute the same kinds of crimes in broadly the same manner as we do now.
We can incorporate aggravation elements under the common law, but we cannot monitor how many such cases there are in a year because the aggravation is included in the text of the charge. The bill will allow us to monitor such cases and to count how many we deal with in a year.
I understand. To an extent, you will just be ticking boxes, but it will be important and appropriate to do so.
It will be very important because it will send out a message.
Yes. However, we have heard from a number of folk who believe that the common law is not properly or extensively used because aggravations are not signalled to the court and possibly not even picked up by the police because they perhaps do not think that they matter. Is that a fair reflection of the world as you see it?
It is impossible to say what we do not know, because we get what the police identify and report to us. If these aggravating features were present in a case, it is safe to say that they would be regarded as such at the moment. However, you are right that providing for such aggravations in legislation raises their profile, allows us to be clear about what amounts to an aggravation and gives us a much clearer framework in which to operate and be clear about what we expect from the police and how we can bring the aggravation to the courts' attention. The courts will have to take into account the fact that Parliament has said that crimes are necessarily worse if they are motivated by certain prejudices. Referring to aggravations in legislation therefore gives them a much higher profile and clarifies for us what we are dealing with and what is expected.
So you would expect the bill to impact on what the police do on the ground and how they fill in the forms that inevitably must be filled in.
Absolutely. Filling in forms sounds like an unimportant exercise, but the way in which the system works is that we, as prosecutors, can bring to the court's attention and rely on in trials evidence that the police reports bring to our attention. It is therefore important to focus on gathering evidence of aggravation if that kind of evidence is to come to the attention of courts in Scotland. If Parliament legislates as proposed, that will have an impact on how the work is undertaken because we, as prosecutors, will look afresh at how we handle such cases. We will issue guidance to prosecutors around the country about what impact such evidence will have on their decisions, and we will offer guidance to the police about how they should deal with such evidence if they come across it.
The bill retains the discretion of the sheriff, other than in the need to give reasons, so there will be no mandatory sentence if an aggravation is established. Does that match how offences that are aggravated by racial or religious prejudice are currently dealt with?
The bill's provision on sentencing is the same as that for existing aggravations and we expect it to work in the same way. Obviously, the court is independent of the prosecution service, so we do not control what weight is placed on the aggravations. However, if the bill is enacted, we will get to know, as with existing offences, what weight is attached to the fact that an offence was motivated by an aggravating factor.
On the basis of your experience of cases involving other aggravations, should sentences be more punitive in cases in which an aggravation is proved? Should the people who are found guilty of such offences receive longer prison sentences or bigger fines?
It is hard for us to say. We get to find out what the overall sentence is and how it reflects the aggravation. By its very nature, an aggravation is something that makes an offence worse than would have been the case if that aggravating factor were not present, so one would expect that reflecting the aggravation in the sentence would have an impact on the severity of the sentence that was imposed.
We have had some evidence—from Mr Hopkins, for example—about community sentences and whether more satisfactory community sentences would be more effective in tackling the reason why people commit such offences. Would you expect more use to be made of community sentences to reflect and respond to aggravation by prejudice?
That is quite a difficult issue. We must be clear that such aggravation can attach to the whole spectrum of criminal offending, from breach of the peace—which, although it can be extremely serious, is an offence that is often regarded as being at the lower end of crime—to homicide. Aggravation does not apply only to particular crimes. We are talking about a range of crime, so it is difficult to predict what the disposals should be.
In fairness, those are primarily matters for the judiciary rather than for you.
Exactly.
On the basis of your experience of offences that have been aggravated by racial or religious factors, is it your impression that the people who have been found guilty of such offences have received more punitive sentences or that greater use has been made of community sentences for those offenders? Depending on the severity of the offence, a mixture of both forms of disposal might be used.
In general, I am not aware of a reliance on community-based sentences in such cases, although it is fair to say that, across the justice system, it is universally recognised by the prosecution service and by the courts that a crime that has been motivated by racial hatred, for example, is by its nature more serious than it would have been had it not been motivated by racial hatred. That is now part of the understanding of such crime.
I am trying to get at the fact that there are a number of reasons for having aggravation by prejudice, but I presume that one of them is to strike at the heart of the cultural factors that underlie that prejudice and to reduce people's propensity to commit such offences in the first place. Such prejudice is sometimes associated with ignorance or other background factors such as attitudes. Do you accept the view that a number of people who have given evidence have expressed, which is that we should focus on trying to change people's attitudes and behaviour in that regard?
I think that that is right. We do that in a number of ways. For example, we do it by having a rigorous prosecution policy that brings into the public domain and to the attention of the courts how seriously such crimes should be treated. At the other end of the system, the courts have a range of powers. If there were a creative disposal that evaluation had shown to have an impact on the propensity of people to commit such offences, it would be extremely difficult to suggest that that was not an appropriate disposal in such cases, but we are dependent on the availability of schemes that have been evaluated so that we can be utterly confident that they will achieve what they seek to achieve.
Do you have anything to add, Ms Cockburn?
It depends entirely on the person who commits the offence. We could not say that someone who was guilty of such an offence would definitely get community service. It would depend on their record. As well as having a law that says that aggravation by prejudice is wrong, there must be a programme of education. People might need to be taught tolerance.
On the role of the Crown Office and Procurator Fiscal Service, I think that I am right in saying that there is currently a policy—I am not sure whether it is a presumption, but there is an instruction—on accepting pleas that would result in the removal of an aggravating factor. What exactly is the policy?
There is a very logical policy, which makes it clear that when there is evidence of an aggravating factor, for example in relation to racist crime, that should be brought before the court's attention when possible. We should make full use of the statutory aggravations rather than rely on our previous powers to make the courts aware of the facts and circumstances of a crime. Thereafter, when we charge cases, we should ensure that we maximise the potential of the statutory aggravations and do not delete those key elements, the aggravating factors, from the case as part of plea negotiation. For example, if there is a racist element in a breach of the peace, it is clearly in the interests of the accused person to seek to agree a plea of guilty to the breach of the peace under deletion of the racist aggravation. We have given very clear guidance on policy to indicate that that is not generally in the public interest. That is an interesting aspect of our policy, because it is clear and it has been in force for a number of years. If you asked people across the prosecution service how they are to approach racist crime, you would find that that policy is clear in their minds. There is a universal understanding of what it is intended to achieve.
The committee follows that clearly, but what about situations when there is a particularly anxious complainer, who is definitely not keen to give evidence—more so than in the average case—because of potential health damage or suchlike? Do you still retain discretion in cases in which it is manifestly in the interests of the victim that a plea be negotiated in suitable instances?
Absolutely. We have policy on a range of crimes and how they should be treated. Our policy in this instance is clear and it is regarded as being a very strong policy, which is to be departed from only in the most exceptional cases. Our overriding duty is to prosecute cases in the public interest. That means that we must always take account of all the circumstances of the case; there can be a number of unforeseen factors in cases and we have to be open to considering them. In the example that you give, if the witness had particular anxieties, our first option would not be to delete the aggravation or to discontinue the proceedings but to give advice and support to the victim to help them through the prosecution, so we would have recourse to, for example, special measures and the range of other support mechanisms that are there to make the process better for victims. We feel strongly, particularly when vulnerable groups are targeted, that it is generally not in the public interest to allow the fear that the perpetrator has brought to bear on a witness to bring proceedings to an end, but a different approach sometimes has to be taken in very extreme cases.
On a practical point, if you drop the aggravation, does that have to be indicated on the case papers, with some reason given for it and some justification for higher-up officials?
Absolutely. Would Linda Cockburn like to comment?
Yes. That would be the advice to every prosecutor when they depart from a policy. In any type of case, the advice is to write on the case papers the reasons for departing from a policy. If the prosecutor is asked about the issue six months down the line, because they deal with so many cases, they might have forgotten reasons, so those would be marked on the papers.
Our system requires us to give the reasons for such decisions, which are approved by a senior member of the prosecution service.
Yes—a legal manager ultimately takes that decision.
What do you do in a case of assault or breach of the peace that includes in the libel sectarian or racist remarks if, in the course of the Crown case, your evidence does not sustain the sectarian or racist element? That inevitably happens from time to time. If the defence does not make a no-case-to-answer submission, do you seek to delete that element from the complaint?
There are several options. The prosecutor might feel that it is patently obvious that the evidence is not sufficient and that, as an officer of the court and an independent prosecutor, they cannot properly ask the court to consider that element. In that situation, they will delete it. Alternatively, the prosecutor might feel that an argument can be made. The comment that was made might be on the boundary, so it is not clear whether the remark was racist or motivated by hatred. The prosecutor might make an argument about that, which may or may not be successful. The prosecutor will either delete the element or argue the case, with the court then deciding whether that aspect should be removed. However, the substantive charge will not be lost as a result.
There have been complaints, which are too frequent to be apocryphal, that in some cases the Crown, through no fault of its own, cannot sustain the effective aggravation but still seeks a conviction.
I cannot speak about individual cases or the decisions that people take. However, people prosecute such cases daily and make immediate decisions about the evidence and its significance. Sometimes, there is a subjective element in relation to what a particular remark means. For example, there might be a question as to whether a remark was really racist, as it might be interpreted in several ways. If an argument can be made, it is proper for the prosecutor to make that argument and to let the court decide. However, if it is patently obvious that there is no evidence to support that element, it will be perfectly appropriate to remove the aggravation—personally, that is what I would do.
I agree. Obviously, we can still go for conviction on the substantive charge, but the aggravation should probably be removed. However, I cannot speak for every individual case in the country.
Clearly not.
We have had evidence that the creation of a new statutory aggravation might impose additional burdens on the Crown. What is the panel's experience of that? Do you envisage any difficulties with implementing the bill?
There are two aspects to that. It will be clear to prosecutors that an additional element must be considered. The word "burden" sounds slightly negative—there will be duties on prosecutors to look for evidence of the new aggravations, to ensure that charges are libelled effectively, and to lead the evidence on that explicitly in such cases. There will be additional duties on us to ensure that we do all that we can to secure and bring before the court the available evidence of any such aggravating factors. There will therefore be work for us in developing policy and guidance and work for individual prosecutors in individual cases.
So that the committee understands the process, I point out that our reports are received electronically from the police. Every report has a charge, which we will adjust. Obviously, there is a huge number of possible charges. The police also send aggravation codes, which we can add to or take away from. With the aggravations that already exist, there are 2,500 combinations of the aggravation codes. The bill will introduce more, so that we will have 6,500 combinations. That is not the problem; our system can cope with that. The problem is that the charge can hold only six aggravations. It might seem unusual that one charge would have six aggravations, but there are not only textual aggravations but aggravations relating to domestics and whether someone is on bail. Our system can cope just now, but if we keep adding to the law by way of aggravations, our system will eventually become full up; six characters will not be enough and we will have to rewrite the whole system. That is a word of warning. We can cope just now, but if there were any more aggravations, we would begin to struggle.
There would be computer overload.
Yes.
We will follow that up later.
What are the implications for witnesses and victims who will be giving evidence in these cases?
That is an important issue for us to consider. If we choose to libel these aggravations, they will be part of the charge and victims and witnesses will be required to give evidence that speaks to them. We have to be careful that we are comfortable with that and that it is in the public interest in the individual case. In relation to homophobic crime—or indeed any area of crime—there is a clear prospect that someone might have to talk about sensitive and, sometimes, private matters relating to their personality or identity, which they might not wish to have aired in a public forum. We have to be careful that we have information about that. Where that is a real problem for the victim or witness, we have to consider what is in the public interest. In some cases, it will not be in the public interest to air that part of the crime in the public forum of the criminal trial.
The evidence that we have received is that, in evidential terms, the common law is much more powerful than this statutory aggravation would be. Do you agree with that?
I do not think I can say that the current common law is more powerful. At present, if we were dealing with, for example, an assault that was motivated by homophobia, we would prosecute it and choose whether to lead evidence about the particular aggravation involved, such as remarks made at the time of the assault. We might choose not to lead evidence on that, for the reasons of sensitivity that I outlined. The same will apply with the new aggravation. We will have to decide whether it is in the public interest to bring out that aspect of the case. If we choose to do that, we will do it using the aggravation and there will be express reference to it.
In response to a previous question, you said that these cases would be treated in a high-profile manner. You used the term "high profile". Will you elaborate on what you said?
I do not think I said that these cases would be high profile, but their general profile would be raised by virtue of the aggravation. They will absolutely not all be high-profile cases. This is not to diminish any kind of crime, but some cases will be a breach of the peace or a minor assault that is made more serious because of the aggravation. Given the aggravation, the profile of these cases would be raised in the context of the court, because of the new duties that would be imposed on the judge. Some cases might be high profile, but they will not all be high profile.
That is not to do with the resources that will be attached to the case.
No. I was talking about the way in which the crimes are regarded. We are raising the profile of crimes that are aggravated by virtue of hatred against a particular group, because Parliament will have raised the profile of those crimes by recognising their particular seriousness. The profile of the crime—its seriousness—will necessarily be raised in the court because of the provisions that will be enacted if the bill is passed.
It is important to emphasise that the bill is seeking to introduce not a new category of crime but aggravations to an existing common-law crime.
Previous witnesses have suggested that a significant number of false or exaggerated claims of racial aggravation have been made in an attempt to ensure that prosecutions take place. Indeed, last week, a witness claimed that that was an element in 20 per cent of such cases. Have you found that to be a particular problem?
In the absence of any sound research showing the exact proportions, I would be loth to put a figure on that.
Like, I am sure, the rest of the committee, I was surprised that the witness felt able to do so. In any case, I was simply referring to the evidence that we took last week. What is your view on the general point?
As I say, we certainly cannot put a figure on it. With any crime, we as prosecutors have to examine the evidence carefully and take into account any suggestion that the complaint is ill-motivated or not founded on credible and reliable evidence. However, it is safe to say that our anxiety over people making false allegations with regard to this type of crime is no greater than our anxiety over such allegations in relation to other types of crime.
Absolutely. What Bill Butler suggested can happen with any crime. Anecdotal evidence is one thing, but sound research might need to be provided to back up such claims.
That is very clear.
It is a very important provision, because it does not give us any more of a burden than the common law already imposes on us. As Linda Cockburn has pointed out, we will still be prosecuting the same substantive crime. We will still require corroboration of the fact that the crime has been committed and of the perpetrator's identity, but, as with the common law, particular features of an account and particular aggravations will not require corroboration. It is important that a standard is set that will allow us to admit that evidence but which is not unreasonable or unachievable.
In fact, the standard has already been applied hitherto.
Absolutely.
Obviously, if there is sufficient evidence, you are perfectly entitled to proceed with a case. Sometimes, when you assess evidence in a crime, you might well have reservations about any racial or sectarian aggravation before the case is marked. In such cases, would you rely on the sufficiency of the evidence and go ahead with the prosecution or would you apply the same standard that you would apply to any run-of-the-mill case?
Prosecutors always face that dilemma. Our primary role is not to determine the facts of a case but to look independently at the evidence and bring it before the court for a judge or a jury—as the case may be—to make a decision. However, in certain situations, we might have to go further than that. For example, a piece of evidence might not only make us question the principal evidence in a case but substantially contradict the principal evidence. If, as a result, it is clear that the allegation cannot be true or is seriously in question, we have to pause and think about whether we can properly bring the case before the court. On the other hand, if it is a matter of the individual prosecutor believing the account, we are probably going too far. Deciding who is or who is not telling the truth is not a luxury that we as prosecutors have, particularly given that, in Scotland, corroboration is required and we can bring a case only if there is principal and supporting evidence.
Will you elaborate on the difficulties that prosecutors face in differentiating between offences that are motivated by prejudice and those that are carried out due to a person's perceived vulnerability? What effect, if any, will the bill have on prosecution decision making in such cases?
We already have that dilemma, but it will be crystallised by the creation of particular aggravations. Our approach will be simple: the fact that a crime has been committed against someone in one of the protected groups will not be enough to prove to the court that the offence was motivated by a hatred of that group. It is important to be clear about that, because there could be an expectation that whenever a crime is committed against someone who is disabled, for example, the aggravation will be triggered. It will not.
Andrew McIntyre is right. The fact that someone perceives that something was the cause of what happened does not mean that we can prove it. We need objective evidence that we can provide to the court.
Might cases be prolonged because you need to seek specific evidence?
I do not think so. Cases will not be dragged out beyond what is right and proper, given our investigation and inquiries. What might happen—although it should not happen if we give clear guidance to the police—is that we get a report of an assault against someone in a wheelchair, for example, and nothing is said about the motivation for the crime. An obvious question for us would be whether the crime was motivated by a hatred of people in wheelchairs or by the person's vulnerability. We would ask the police to consider that and report back to us, and we would then consider the evidence. There might be some work involved in that, but it would be quite proper for that to be undertaken.
As Ms Cockburn said earlier, the bill does not create any new offences, but it has been suggested that it might pose a threat to freedom of speech for those who hold mainstream Christian beliefs about sexuality, marriage and so on. For example, let us say that, outside a gay bar, a church organisation distributes pamphlets that contain material about sexuality that some people might perceive to be alarming or upsetting. Could that lead to a charge of aggravated breach of the peace?
I anticipated that question, because we have discussed how we will approach such cases. Such issues arise, and have arisen in the past in respect of the existing aggravations, so they are important to consider.
So it would all hinge on the circumstances, the reasonableness of the material being distributed and/or the actions of those distributing said material.
Absolutely. We would have to consider all the circumstances: what was being said, how it was being said and who it was being said to, and the nature of any publications. Only when something breached the criminal law would an issue arise.
Objectively, an issue would arise only if the action would alarm or seriously disturb any reasonable person. That is the objective test that the court would set.
You are content that the bill's definition of prejudice as "malice and ill-will" is sufficiently clear to allow prosecutors to decide in examples such as the one I have attempted to outline.
I think so. The expression "malice and ill-will" is quite old fashioned, but it is used daily in the courts and we are familiar with it. It says what it sounds like it says, and it is something that we can recognise generally when we see it in the evidence. We are not uncomfortable with the test. It does not change the standard to any significant degree. Importantly, the root offences will continue to be the same, so our handling of them will be the same as it is now. However, if there is evidence of a particular motivation, that will be highlighted differently under the bill.
So there will be no real change in the procedure and the approach.
That is correct. Although there will be a change in the court's recognition of breach of the peace—its profile in the court—we will still have to make the same decisions about what is a breach of the peace and what is not.
Surely the issue here is the question of alarm, which was originally defined in the case of Logan v Jessop. The alarm has to be real. It should not be exaggerated, and it should not be the alarm that would be experienced by a particularly sensitive person. Has the law moved on from that definition of alarm?
The current definition is that in Smith v Donnelly, which states it slightly differently, although the way in which you expressed it is exactly the way in which we would apply it. The prospect that someone could potentially suffer minor annoyance or disagreement, or hold a different view, would absolutely not be a breach of the peace. There has to be something more, and it must always be judged, as with all such standards, against the standards of the reasonable person taken in the whole.
Are there two exercises that have to be carried out by the prosecutor and the sheriff?
Yes.
One exercise is to identify whether there is a breach of the peace in the first place. Does an aggravation influence or affect the definition of breach of the peace in any way?
No, it does not. The first test is whether there is a breach of the peace. If there is, the next test is whether the comments—comments that would be likely to cause alarm and distress to a reasonable person—were made because the person who made them had a hatred of, or was evincing malice or ill-will towards, a particular group. Those are the two tests, although they will be closely linked. With a breach of the peace in particular, the issue will probably hinge on the comments that were made, and we will have to consider whether those comments meet both parts of the test. There will be other factors, such as the way in which something is articulated and where it is articulated.
The key point is that you do not anticipate that an aggravation per se will influence or change the definition of breach of the peace.
No. There must always be an objective, reasonable test.
There is a little concern about one of your earlier answers on IT, Miss Cockburn. Perhaps it is worthy of further explanation.
Can you provide some further detail on the implications for IT if the bill is passed? Have you anticipated a timescale for making any necessary changes?
As I explained, we have a finite number of characters that can be put into aggravation codes, with a maximum of six aggravations per charge. At present, we might see three aggravations. As I said, they do not all represent racist or religious aggravations but include aggravations related to bail and domestics, for example. The codes can be used to flag up in court a previous conviction for a domestic, for example. That is the reason for them.
You mentioned the cost implication, which is substantial. There is also the problem of the number of back-office hours needed to make the changes.
A lot of hours would be needed. Someone from our policy division would need to sit and input the text for 4,000 extra combinations. There is no doubt that the job would be time consuming, but it could be done. The timescale would be 12 weeks. We would have to meet the police and the Scottish Court Service to ensure that everyone was using the same aggravation codes. There would be a policy aspect to take into account, too, as well as the time that it would take someone to write the 4,000 extra combinations.
Would that be done in-house, or would you bring in external expertise to assist you?
The codes would be written by a member of staff from the policy division.
We are clear that the current proposal would pose no problem for the capacity of the IT system. Although there would be work to configure all the different possible charge codes that would need to be configured, the system has the capacity to deal with what has been proposed.
And the cost is minimal.
When legislation is being made in any Parliament, the focus should not be on the short-term view alone; a longer-term view should also be taken. You have flagged up an important issue.
We are not making any judgment or comment about what might or should happen in the future. The point is that the current system is capable, but it is reaching its capacity.
We are merely flagging up that point to everyone.
As there are no further questions, I thank Miss Cockburn and Mr McIntyre for attending. In your case, Mr McIntyre, it might have been an action replay of an earlier briefing, but you appreciate that we require to put your evidence on record. I thank you both for the quality of your evidence this morning.
Thank you very much.
Meeting suspended.
On resuming—
I welcome our second panel: Patrick Harvie MSP introduced the bill; Sara Stewart is from the Scottish Government criminal law and licensing division's sentencing policy unit; and Jetinder Shergill and Marie-Claire McCartney are from the Scottish Government legal directorate. We will move straight to our first line of questioning, which is led by Angela Constance.
Good morning. I ask Patrick Harvie to give an overview of the main purpose of the bill.
Good morning, colleagues.
You will have heard that previous witnesses have stated that the common law is already well-equipped to deal with the aggravations that are outlined in the bill. What is your view?
A number of witnesses have argued that the common law is technically sufficient. However, there has also been a substantial amount of evidence that the common law is not being effectively applied or is unable to perform some of the functions that we seek from legislation. In particular, common-law aggravations are not being used frequently enough in cases in which they might be appropriate, and there is no regular recording of those aggravations. There is no guidance to the police or to procurators fiscal on how to deal with such crimes.
You said that although witnesses said that the common law is technically capable of dealing with aggravations, the reality is somewhat different and the law is underutilised. Can you cite evidence that supports your view?
"There are known unknowns"—is that Rumsfeld's phrase? As witnesses on the previous panel said, it is about knowing that offences are not being reported to the police, that cases are not being brought and that hate crimes are not being explicitly recognised as such, which means that data on them do not exist. It will be possible to give the fullest answer to the question only after legislation has been in operation for a while and we know whether the Association of Chief Police Officers in Scotland was right to say that more hate crimes will be reported if the bill is passed. The statistics might go up for a while, simply because offences would be recognised as hate crimes. I hope and believe that sentences would be effective and that the evidence and intelligence information that are gathered by the police and by the courts will be used effectively.
You hope that the bill will improve the situation and enable us to know what is currently unknown.
Yes. The committee heard from equality organisations that there is not just anecdotal evidence but research evidence that people who experience such offences come to accept them as a given that they have to live with. We should not allow that to persist—we should not expect people to think that they must deal with hate crimes as a given. [Interruption.] That is not the kind of society that Parliament wants, nor is it the law of nature; it is something that we can tackle. Passing the bill is just one of the necessary actions that we must take if we are to tackle such offences more effectively.
The gremlins are around this morning. Will everyone please ensure that their mobile phones are switched off?
It seems that two issues are involved in what Patrick Harvie has been telling us about common-law aggravations: first, the extent to which aggravations in reported crimes are not being drawn out by procurators fiscal and sheriffs; and, secondly, the extent to which such crimes are underreported as a result of perceptions about what the law does about them. Do you accept that there is no clear evidence that common-law aggravations are not used in cases that come before the procurator fiscal? Is it fair to say that there is no evidence one way or the other on the matter?
I am not sure that I agree. When witnesses from the Law Society of Scotland gave evidence to the committee they made a case for the common law's ability to achieve what I hope the bill will achieve, but their case was not entirely consistent. David Cabrelli said:
My question was related to the evidence that exists with regard to whether the common law is used to deal with aggravation. In your answer, however, there was quite a strong suggestion that the bill is intended to send out a message, as part of a number of other mechanisms to identify the importance and significance of those issues. I will ask you about two points in relation to that. First, is it an appropriate job for criminal law to send messages, as opposed to dispensing justice in individual cases? Secondly, will the bill alone be effective in conveying that message and increasing the profile of that type of offence?
I am not sure that I agree that the core purpose of the legislation is to send a message. Most of us take the view that legislation is not a flag-waving exercise—it is not just about sending smoke signals.
So your view is—if I understand it correctly—that a range of things are being done and should be done to tackle that particular difficulty.
Yes indeed.
Is one of the high points of the legislative change that it gives a direction of travel, in addition to other things?
Yes. I have with me a copy of the report of the working group on hate crime, with which I am sure the committee is familiar. The working group produced a number of recommendations, most of which were not legislative in nature. There were only two proposed legislative changes, of which the provision under discussion was the clearest. In introducing the bill, I sought to give Parliament the opportunity to enact that provision.
That links directly to my question on underreporting, which can be said to be the elephant in the room. Underreporting is a serious matter in this regard, as it is in the reporting of rape and sexual offences where, for all sorts of linked reasons, it is difficult to get people to come forward to make complaints and so forth. Will the bill help to counter underreporting? If so, to what extent should the provisions in the bill be matched by others that would encourage people to stand up for their rights in the way that you implied in your response to the previous question?
The bill will certainly have an effect. That said, the bill is necessary but not sufficient in itself. A host of other things must be done. If someone's friend or partner has gone through a process of reporting such a crime and is treated with respect by the police and courts—in other words, their experience is recognised—that person will, if they are in such a situation, recount to the court how an aggravation was demonstrated and the sentence will be varied as a result. That sort of experience is likely to increase willingness to report.
The bill does not make provision for the imposition of mandatory sentences when an aggravation has been proven. What are the reasons for that?
As has been made clear, the bill does not create new offences; it introduces a statutory basis for an aggravation for offences that could be either extremely serious or more low-level—offences that might attract a custodial sentence or a community sentence. It would be difficult effectively to specify in legislation what variation to a sentence should be required. It would be better to leave that in the hands of the court, which will know the facts of each case. The court may determine that a sentence should not be varied as a result of the aggravation, but it would have to explain why. If it chose to vary the sentence, information would have to be given on the nature of that variation.
Do you accept that sentencing is an important part of the process? We heard earlier from Mr McIntyre that some victims may find it difficult to give evidence in court. If the outcome was a sentence that was not as punitive as they had expected it to be—perhaps they expected a mandatory sentence, but that was not what the offender received—would not that be disappointing for victims who have gone to the trouble of giving evidence in court? They may have wanted to remain anonymous but decided not to do so because they thought that the offender would receive a mandatory sentence.
The purpose of the court passing a sentence is to serve the best interests of the public—it is not necessarily to send every victim away not feeling disappointed. People go through difficult emotional experiences when they report an offence and when they go through court proceedings as witness or victim. We cannot pretend that we are going to make everybody happy. What we must have, as Tim Hopkins from the Equality Network has said, is the appropriate response. In some circumstances, that will be a severe sentence; in other cases, it might be a different sentence. It is for the court to determine the response that is appropriate for the offender. That is what we should be looking for.
Do you accept that the victim would have to feel comfortable giving evidence? Surely if they were convinced that a trial would result in not just a community sentence but a more effective community sentence, they might feel more confident about coming forward in the first place.
I believe that making the reasons for varying a sentence very clear will have a knock-on effect for future victims of offences. If victims are aware that that happens in Scotland, it will help to build confidence in reporting. I stress the word "help", because it will not build confidence on its own.
I understand the response.
I might be able to shed some more light on the question of cases in which a sentence might be considered to be particularly low. The Crown would still be able to pursue the case under the appeal procedures in the Criminal Procedure (Scotland) Act 1995; indeed, under the bill's provisions, the court would have to explain how the sentence has been affected by the aggravation.
As I said earlier, there is a need to be clear and explicit and to recognise these offences. I am sure that in some circumstances someone might be uncomfortable about the inference that might be drawn about their transgender identity or sexuality based on an aggravation, but we should remember that the aggravation is about the offender's motive, not the victim's status or identity. In such cases, there must be appropriate support through victim support agencies and organisations, but that is no reason for not recognising that, in many cases, victims are angry and assertive, or for not having the aggravation.
Let us get back to the real world for examples. Some individuals will continue to carry out homophobic attacks unless a clear message is sent out by having a mandatory sentence. I am not necessarily saying that such a sentence should be introduced; however, a very clear message has to be sent to certain individuals, who will simply not respond to community sentences.
I am still minded to leave such matters in the hands of the court, which will base its decision on the specifics of the case and the information that is available. Of course, some individuals will continue to hold such attitudes, to believe that they have the right to act on them and to commit further offences. If a court were convinced that an offender's motivation demonstrated a continued—and higher—threat to the public, it would take account of that and express those reasons in passing and varying a sentence. It would be very hard to specify that in legislation. What you suggest might be appropriate in some cases, but not in every case.
You have already answered part of my question. However, as far as appropriate community sentences or appropriate responses from the court are concerned, would educating offenders on such matters have benefits? Would educating school pupils also have future benefits in that respect?
Very much so. The Scottish and United Kingdom Governments have identified a large number of areas where work on this issue has to improve. I will probably not surprise anyone if I say that the way in which racism in schools has been dealt with much more seriously in recent years has not been paralleled by a change in how homophobia is dealt with. Some schools and teachers are better than others, but many teachers still feel uncomfortable about challenging homophobia. In many schools, homophobia is still just normal. We should not allow it to be just normal. The Government document that I mentioned identifies several ways in which it is working on that. I hope that the Justice Committee and others will continue to take an interest in the matter. I certainly will.
The written submission that we received from Leonard Cheshire Disability quotes Disability Now magazine. At the bottom of page 3, the submission states:
As I mentioned in relation to sexual orientation and transgender identity, police forces in Scotland have made progress towards having in place specific systems to deal with offences related to those issues. However, we are less advanced when it comes to disability. I hope—in fact, it is more than a hope, it is a clear expectation that is confirmed by the comments of police representatives—that if the bill becomes legislation it will help to bring us up to speed on offences that are motivated by prejudice on the ground of disability.
We received evidence a few weeks ago on the Brighton case that you mentioned.
Okay—thank you.
As Patrick Harvie knows, under the bill, evidence from a single source will be sufficient to prove that an offence was aggravated by prejudice relating to disability or sexual orientation. How confident are you that that will not lead to false accusations being made about aggravation? Last week, we heard the assertion that in perhaps as many as one in five cases involving racially aggravated offences—20 per cent—an issue arises about the veracity of the accusation. What is your view on that?
To be clear about what was said, I do not think that it was suggested that one in five cases involved false accusations; it was suggested that, in about one in five cases, there is an issue about veracity. That is very different from saying that a certain number of allegations have been found to be false.
Sure.
An issue might be raised about the veracity of evidence in substantially more cases than that, for any particular criminal offence that we might mention. We took the view that the statutory aggravations on the new grounds should be modelled on the existing ones. That is the nature of racial and religious aggravations, as well as others, as the committee heard earlier this morning. An additional feature of an offence does not necessarily need corroboration. We took that view in order to be consistent. I also think that it is the appropriate view. It will ultimately be for the court to decide whether sufficient evidence has been presented to justify a view on aggravation.
That was a clear answer. You will realise, of course, that I was acting as advocatus diaboli—and I will do so again, with the next question. It has been suggested that, although the bill does not create any new offences, it might pose a threat to freedom of speech, particularly for those who hold what could be described as traditional, mainstream Christian beliefs about marriage and sexuality. How would you, as the bill's proposer, respond to those concerns?
We are working within the limits of the human rights legislation that is in place. I am sure that Bill Butler knows that I am not likely to wish to infringe on people's right to public protest, freedom of speech or even civil disobedience, if it came to that.
And you would not be allowed to introduce the bill in the first place—you are absolutely right about that.
I believe strongly in freedom of speech, and I do not believe that the bill infringes on it at all. The organisations that have submitted written evidence expressing that concern have done so on the basis of fear and apprehension, rather than on the basis of actual experiences. The Bishop of Chester might have had a phone call with the police that he did not enjoy, but no charges resulted. If aggravations could be misused in the way that has been suggested, examples would have occurred in England and Wales, but that is not the case.
That was very clear. Thank you.
I would like to add something in relation to the convener's earlier question. My colleague from the Crown Office did not touch on this technical aspect to how the provisions would work. Because of section 1(1)(b), the provisions will bite only where the Crown has libelled the relevant offence with the aggravation. Paragraph (b) is an important technical provision: the Crown must prove
The reasonableness test will again apply.
The standard of proof will be no different—it will be the criminal standard. The provisions relating to corroboration reduce the amount of evidence that is required, but the Crown will be obliged to provide the tribunal of fact with the same sufficiency and level of proof.
So, it is the status quo ante.
Indeed.
Given the special circumstances of the bill, which is a member's bill promoted by Patrick Harvie, it is appropriate for me to revert briefly to you, Mr Harvie. The committee has attempted to deal with the matter as thoroughly as it can, but we may have missed issues that are to the fore in your mind. Is there anything you would like to raise with us?
You will be aware of the Equal Opportunities Committee's report and recommendation that other forms of hate crime and bases for statutory aggravation be included in legislation by ministerial order at some future point. When I introduced the bill, my intention was to base it on the key recommendation of the working group on hate crime; I did not intend to express a view on whether it was appropriate to extend the legislation to age or gender. The Equal Opportunities Committee has taken the view not that that is necessarily appropriate but that the option should be left open to ministers. The Justice Committee may feel that the proposed power is very broad.
That is certainly my view, and many members may share that opinion. Would you like to raise any further issues?
No. We have covered more or less everything that I expected to cover. Thank you for your time.
Not at all. Thank you for giving evidence to the committee.
Meeting suspended.
On resuming—