Official Report 458KB pdf
I welcome everyone to the 26th meeting in 2010 of the Economy, Energy and Tourism Committee. We have received apologies from Lewis Macdonald, who will be here in due course, and Wendy Alexander, who is attending a conference and will be here for later items on the agenda. I also welcome to the meeting Hugh Henry, the member in charge of the Protection of Workers (Scotland) Bill. He is welcome to stay for the rest of our business, but I am sure that he has better things to do.
The figures reported by our members show a persistent problem that, regardless of economic circumstances and other factors, has stayed at the same level in recent years. As we say in our written evidence, over the past 12 months, 20 per cent of our members have reported some form of intimidation, abuse or assault. Unfortunately there is massive underreporting of incidents. It is difficult to get reliable figures, but when we ask about the issue about three times as many people say that they have been subjected to such behaviour as have actually reported it to the police. When we ask them why they have not done so, the strong feeling that we get is that the incident would not be treated sufficiently seriously.
We, too, broadly support the bill’s principles, mainly because we think that it sends out a clear message to the people with whom our staff come into contact that such behaviour is unacceptable and will not be tolerated, as well as a message to our staff that they are not expected to put up with it.
First ScotRail supports the bill’s introduction for many of the reasons that have already been outlined. For a start, we think that it will raise the profile of these issues and highlight that such behaviour is unacceptable and that our workers, who provide a vital service to the public, should be valued for their work. Over a number of years we have done a lot of work and reduced the number of assaults, but we think that the bill provides another means of maintaining that downward trend.
So it is not that the bill would change the legal position on assault—an assault would still be an assault—but that it would make the public feel that the prosecuting authorities would take the issue more seriously.
That is correct. As we have said, raising the profile of such issues would act as a deterrent, and it is the bill’s deterrent factor that we really support.
Instead of changing the law and making such incidents statutory rather than common-law offences, could the Government or others take measures that would have a similar impact?
As an employer, we have done a lot of things to mitigate assaults on our staff but I am not quite sure what else could be done under the law. We have extended closed-circuit television coverage and given staff extensive training. We have DNA kits on trains and in stations. All that has led to a slight reduction, but we would like to get out the clear message that such behaviour is unacceptable.
I take your point, convener. There might be other ways of achieving the aims, which are laudable. However, the bill is what we have: its proposals are in front of us and we are considering the changes that it will make. On that basis, we support it. You and Julie McComasky are right to say that a piece of legislation is not a silver bullet and that it will not solve the problem on its own. Murder has been illegal since Moses descended from the mountain, but the jails are still full of lifers. Legislation has to go alongside a proper enforcement campaign. However, that is probably beyond what we can do as employers and as a lobbying organisation. There are questions for the criminal justice system that are probably outwith the sphere on which we, as a business organisation, should be commenting.
I do not have anything to add, other than to agree with what Colin Borland and Julie McComasky have said.
Good morning. I thank each of you for your comments about the profile of the problem being raised.
Yes, I think that it could. It gives a clear message about abuse or aggressive behaviour towards our staff, or other public-facing staff, being a specific offence over and above a normal common-law assault. It could make it easier to prosecute.
Yes. Your submission says that you have a problem with the definition of a “member of the public”.
Yes. We wanted to be clear that the definition would extend to the clients who use our services—our service users—and to their parents and carers. Our staff might be providing a service to the individual, but the risk of violence or aggressive behaviour can also come from a service user’s parents, family, or other carers. I wanted to clarify whether that would be an offence under the bill.
Does anyone have further general comments on the bill? I assume that people who work on trains get quite a lot of verbal abuse.
Yes. As Colin Borland said, there is a massive amount of underreporting. Every weekend, staff can quote lots of verbal abuse. We move many people around late at night on Fridays and Saturdays—they get thrown out of the pub and come to the station to get home, so we have to deal with them.
I can understand that. I give the example of travelling between Glasgow and Edinburgh on the 11.30 train in January after a Celtic Connections concert: the variety of behaviour to be seen is something that we want to move away from. In dealing with that, there are issues around highlighting sentencing guidelines to procurators fiscal and the judiciary. I accept the point about heightening the profile, but how do we get more convictions?
I am not sure that it is necessarily an either/or question. I absolutely agree that we need to consider the sentencing guidelines and use all the weapons in our armoury to deal with such problems. It is not that we cannot do that alongside strengthening the law. We have sentencing guidelines for things that have limited impact in the wider public consciousness, but in this instance we can send a very strong message—that, without the people who deliver the services in communities, those communities would often, in effect, cease to exist, particularly in rural and more hard-pressed urban areas. The bill gives us a peg on which to hang that message. It gives us a focus for what the three of us on the panel—and, I imagine, a wider range of stakeholders—would agree is something that we must address and send a united message on.
Colin Borland’s submission gives us some statistics from fieldwork that the FSB did at the start of the summer. For me, the main figure is the one on
The people who were asked the question were the business owners—our members. That figure is the percentage of our members who have been subject to those offences over the previous 12 months.
So the people who responded to the survey were not doing so on behalf of their businesses; they were saying what they, personally, had suffered as business owners.
The question was:
You said that you felt that a lot of such crimes are underreported; I am sure that that is right. Do you think that they are underreported in your survey or, from your knowledge of your members, do you think that they were pretty straight with you on this point?
The survey is anonymous apart from people telling us where their business is located and their membership number; their names are not on the survey forms. Twenty-eight per cent of them told us that they have been subject to that sort of behaviour. We asked how many of those respondents reported it, and the answer was about a third. The actual figure might be greater but I imagine that, if the two thirds are confident enough to say that they have been subject to it but have not reported it, the statistic should be fairly reliable.
The witness from First ScotRail has described different types of incident that take place on the trains, particular at weekends and later in the day. What is ScotRail’s policy for dealing with such issues? Do you have a robust policy whereby such incidents are always reported to the police, and do you push for something to happen, or are things swept under the carpet? What happens in practice?
We have a robust policy in place for dealing with such incidents. All our people who work on trains and in stations can communicate with British Transport Police, which is our main partner for dealing with such matters and with which we work very closely. We like to think that the vast majority of the more serious incidents are reported. We have a central reporting system and we share intelligence with British Transport Police. We have “help us help you” forms so that we can share intelligence and hotspots can be identified. British Transport Police resources can then be targeted to support staff on particular services or at particular locations.
It sounds as though you have a robust education, staff training and reporting policy, but what happens when incidents are reported? Do you get notes back from the police or procurators fiscal that say that nothing can be done because the incident was not serious enough, there is not enough evidence or there were no witnesses? Do you log what comes back? What proportion of incidents end up going to court?
I do not have information on that with me, but we could get it through the British Transport Police.
It would be helpful to have that information. I will not hold you to any figures, but do you have a feel for the proportion of incidents that go anywhere? Are most incidents simply not treated seriously and discarded? What happens?
There seems to be a feeling during discussions that the procurators fiscal often do not take incidents seriously and that common-law assaults are not thought to be significant enough to be taken any further.
So the British Transport Police treat incidents seriously, but when incidents get to the procurators fiscal—
That is the feeling, but I do not have the figures with me to support it.
First, I have a personal declaration. In another world, I am president of the Scottish Association for Public Transport. My status there should be borne in mind with any questions that I ask the railway representative.
A number of the people whom we support have a learning disability. Our staff are given training on how to manage people who have known challenging behaviour. That is mainly about trying to avoid triggers and proactive strategies to reduce the incidence of such behaviour. Our staff are given information and guidance on how to de-escalate and deal with known challenging behaviour, and they learn skills in that. We also offer post-incident debriefing and link into counselling if that is required.
To add to what Sam Jennings said, there are clear pre-existing rules on issues of capacity. We need to be careful to define our terms and know what we are we talking about. In the sort of situation that the member describes, I do not think that a small business owner would seek to prosecute a customer who was confused and who became obstreperous or who thought that she had paid or whose change was not right. Such things happen. We would not have many customers if we started treating them like that.
Our staff often deal with customers who are frustrated, for a number of reasons. Through frustration, people can sound off a bit. Our staff are absolutely experienced and trained to deal with those situations. We differentiate those situations from situations that we consider go beyond that and become a verbal assault. If we were to report everyone who was a bit frustrated and who sounded off a bit, we would be doing nothing else.
Do you not consider that there is an issue because of the law that governs transport, particularly the imposition of competition criteria? For instance, bus companies are specifically told not to confer and reach agreement to maintain connections. So one can expect that the X95 bus coming into Galashiels will see the supposedly connecting bus to Melrose leaving as it comes in. That happens about six or seven times a day. On one occasion a very helpful shunter at Galashiels depot stopped a bus from leaving so that I could make a connection. I referred to that in a blog that I wrote for one of the newspapers and he was reprimanded by the company for doing so. That seems to me a point at which, if the law is an ass, there ought to be a certain flexibility.
I am struggling to see how that is relevant to the bill. Could you get to your question, please?
I am asking whether workers who work in a situation in which an inflexible and poorly conceived law is being enforced ought to consider themselves justified in upholding that law if it contributes to the inconvenience of others. The impact of privatisation on public transport has had that effect all over. May I say that if a train in Germany is late by an hour, the staff go down the train distributing €25 vouchers in compensation. They are therefore probably the most popular people in the country at the time. Have I made my point?
You have made that point, but the point that I was trying to make is that I am not entirely sure what its relevance is to the bill.
The only response I can make on that point is that our staff have to work within the rules of competition and the context of privatisation. They do so to the best of their ability and do not deserve to be abused for upholding those rules.
Good morning. I will ask about parity of esteem. We have heard that the Emergency Workers (Scotland) Act 2005 has promoted further prosecutions and, I hope, encouraged more people to report incidents. Do you think that the bill will have that effect? Is it a good message to send out to workers? Crucially, do you think that the bill will encourage more people to report incidents?
On parity of esteem, we are particularly interested in whether the bill would apply to people who are self-employed and to small business owners. I assume, given the notes in the policy memorandum that refer specifically to taxi drivers, that the intention of those who drafted the bill is that it should apply to those groups. However, as the Scottish Parliament information centre briefing says, it is arguable whether section 1(3) as drafted would include them. If the legislation ever got to a court of law where it was being argued over by clever lawyers, that lack of clarity would certainly dilute the very strong message that I think we agree we are trying to send.
If the bill is passed, would the fact that such legislation was in place encourage more people to come forward?
On its own, perhaps it would not, but it would if it was accompanied by a proper campaign, which should not be down only to the Scottish Government and public authorities, as business and others would also have a role to play. We are members of the Scottish Business Crime Centre, which takes a lead and delivers a lot of good work on awareness campaigns and the like. Provided that the legislation is accompanied by such work, with the message of the campaign being that such behaviour is unacceptable, that people will be prosecuted for subjecting others to it and that incidents will be taken seriously, there is every chance that the bill should raise the frankly appalling underreporting rates.
I agree. Having a specific offence would encourage people to go for a prosecution if they were otherwise swithering about whether that was a good idea or worth while doing. When it comes to some of our service users who have a disability but have been deemed to have the capacity to understand their actions and the consequences of their actions, we have occasionally found that the police do not always know what to do when they are called out to deal with an incident.
I remember all the publicity surrounding the introduction of the Emergency Workers (Scotland) Act 2005. The discussion that that engendered could only raise awareness of the legislation, which has had an impact. We would like the same for our workers as well. As has already been said, if employees and the travelling public knew that there was a specific offence of assaulting a worker who was trying to do their job, that would act as a strong deterrent.
I am sorry for my lateness, convener.
Two thirds of First ScotRail staff are directly customer facing.
I do not have precise statistics, but the majority of our staff are public facing. The only non-public-facing staff are our head office, administrative and other support staff. The majority of our staff are support workers, nurses, teachers and other people who provide a direct service to our clients and interact with their families. Our shop workers are public facing as well.
If the bill were passed without any amendment, it would create a two-tier system within your organisations: two thirds of ScotRail employees would be covered by the bill, but one third would not. The vast majority of Capability Scotland staff, who are public facing, would also be covered. How would your employees deal with that?
It would not be a problem. There is already recognition that the staff who do the late-night shifts on trains and at stations deserve additional protection. The third of staff who are not customer facing do not face the same challenges as the other two thirds, and would be covered under the common law if they were assaulted.
I agree. The response needs to be proportionate to the risk. The risk of violence, aggressive behaviour and assault to our non-public-facing staff is much lower than the risk to our public-facing staff.
Do First ScotRail staff ever operate in what would be described as emergency situations?
Yes. For example, in a high-profile derailment, which happens very occasionally, everyone has to get into an emergency situation and our staff are highly trained to do that.
As the law stands, if the police and fire services attended such a derailment and some of the aggrieved passengers who were referred to earlier started to lose their cool because of delays, the police officers and firefighters would have the protection of the Emergency Workers (Scotland) Act 2005 but the rail workers would not. We heard from the Scottish Police Federation last week that it was important that that protection continue, but the federation’s representative did not think that rail workers should have it. Is it equitable that, in an emergency, your employees have less legal protection than others who attend?
As you describe it, the situation does not seem fair at all. After all, a brick thrown at a train driver’s window can cause a derailment. Given that an assault or attempted assault can cause an emergency situation, it does not really seem fair that those workers do not have the same protection.
I acknowledge that as others have said—and, indeed, as the police said last week—someone who created a serious situation by throwing a brick at a train would, as we would expect, face significant legal penalties. The Parliament and all the parties in it—with one exception—believed that it was necessary for workers in emergency situations to have additional protection in law, but there is a debate about whether such protection should be extended to other workers who deal with the public. You have described a situation in which some of your staff might well find themselves in emergency situations but under the law that the majority of politicians in the Parliament have constructed some of the workers attending such situations get additional protection while others do not.
That is right.
Do any of Sam Jennings’s staff ever have to operate in what could be described as emergency situations with life-or-death issues at stake?
Not really. They might find themselves having to administer emergency first aid or cardiopulmonary resuscitation to one of our service users, but I cannot think of anything that would fit in with the 2005 act or any situation where they might be hindered or obstructed.
I am thinking not about occasions where there might be hindrance or obstruction, but about certain crisis situations in which things get out of hand, emotions start to run high and there might be a threat to the wellbeing of individuals. Do your staff ever have to operate under such circumstances?
Yes, they could do. The behaviour of some of our service users, particularly those with mental health problems and learning difficulties, can lead to crisis situations and staff might find themselves having to protect themselves, the individuals in question or the wider public who might be in the area of the incident.
My next question is for Colin Borland. What would be the social consequences of small businesses feeling that they cannot operate in certain areas as a result of sustained attacks? Leaving aside the implications for the individuals involved—the self-employed and others—do you think that that would have wider social implications?
If businesses think that it is not worth operating in certain areas because of the behaviour that they are continually being subjected to, they will simply pull down the shutters and leave. In many hard-pressed urban and rural areas, the small businesses are the glue that holds the community together. No matter whether they are the local post office, the local pub or whatever, without the services or, indeed, the employment that they provide, communities become nothing more than a collection of houses. As we know, once one business goes, the others start to shut down and leave, which only adds to the feeling of rejection in that community.
The convener mentioned other measures that might be taken and Rob Gibson touched on sentencing and prosecution guidelines. In 2004, there was a commitment that additional measures would be taken and I believe that, since then, action has indeed been taken on sentencing and prosecution guidelines, with the feeling that that move would give additional protection to workers who are not covered by the 2005 act. Also in 2004, the Administration of the time committed it and subsequent Administrations to taking forward a wider package of measures, including awareness-raising and educational campaigns, to educate the public and reinforce the message that attacks on public service and other workers were totally unacceptable. Have those campaigns had the desired effect in improving protection for the people whom the witnesses represent?
I do not have any evidence one way or the other on whether such campaigns have been a factor. As I said, the number of workplace assaults on our employees has decreased slightly over a number of years, but I could not comment on whether such measures have been a factor.
As I said at the outset, the proportion of our members who report that they have been subject to such incidents in the previous year has remained fairly constant at 28 per cent, but I do not have figures that go back before 2004. We could certainly find out whether that question has been asked in earlier tracking surveys and come back to you, if that would be helpful. For the past three or four years, the figure has remained relatively static.
So when people who do not support the bill say that other things can be done, which was similar to what was said when the 2005 act was brought in, you would say to them that you have not seen any historical evidence to suggest that that approach has worked. Presumably, the analysis would be no different in relation to the bill.
It may well be that other things can be done. As I said to Mr Gibson, it should not be a case of either/or, but our figures tend to suggest that the action that has been taken to date has not had the intended effect.
I cannot comment on whether that approach has worked, but one of the reasons why we welcome the idea of the bill is that it would allow us to send a message, perhaps at an early stage, when we might be dealing just with a bit of verbal abuse, that if that behaviour continued, we had a tool that we could use to take further action and to prosecute. Many of the people whom we deal with are family members who may have mental health difficulties over and above those of the person whom we support. They might be experiencing high levels of anxiety and stress, and there might be child protection orders in place.
You say that many of your staff operate in circumstances in which there are high levels of drug and alcohol dependency. I presume that those are situations in which there are potential flashpoints.
Not so much in the services that we provide; that would apply more to our shop staff. Some of our shops are in quite deprived areas and there are incidents of shoplifting and people trying to steal money. Often, the people involved are under the influence of drugs or alcohol. In addition, some of our clients with learning disabilities have been known to act under the influence of drugs and alcohol, and staff may have to deal with that. When staff deal with new referrals and go into the family home for the first time, there might be an issue, not necessarily with the person we are supporting, but with members of the wider network of friends and family who could be there.
I have a couple of final questions. Some of the evidence that we received suggested that the bill might make it more difficult to secure prosecutions because of the additional proofs that might be required—for example, in the case of a statutory offence, proving that somebody was a public-facing worker or that they were assaulted in the course of their work. Does that issue cause you concern, or are you satisfied that what is proposed is unlikely to lead to such difficulties?
It would not be such an issue for our organisation. The only issue would be to do with the capacity of our service users, but that will not change the options that staff currently have for choosing whether to press criminal charges. Most people who come into contact with our staff know that they are working—for example, shop staff are behind the shop counter. Our support workers are known to the service user, and their parents and carers know that we are Capability employees who are providing a support service.
Similarly, it should be a clear-cut issue for most of our members, although we are not legal experts, to whom we are more than happy to defer.
It would not be a problem at ScotRail because all our customer-facing staff wear uniforms and name badges so it is clear that they are at work.
My final point is a general one on which it would be helpful if witnesses could provide any information either immediately or, more likely, in writing. It is difficult to assess whether the legislation is required. When deciding whether to accept its general principles, we have to assess the impact of the 2005 act because of the lack of evidence of assaults. We would appreciate any information from surveys or work that you have done with your staff about how many assaults go unreported to the police and the reasons for that; of those cases reported to the police, how many go on to prosecution; the reasons why those that do not go to prosecution are not proceeded with; and how many prosecutions result in convictions. That would help us to get a feeling for how necessary—or not—the bill is.
I welcome our second panel of witnesses this morning to give evidence on the Protection of Workers (Scotland) Bill. From the Law Society of Scotland are Alan McCreadie, deputy director of law reform, and Bill Maciver, convener of the criminal law committee. Do the witnesses have any opening remarks before we proceed to questions?
My name is Bill McVicar.
I am sorry—it is far too early in the morning for me.
It is much the same for me.
I endorse Mr McVicar’s comments. The Law Society accepts fully the principle that all workers should be properly protected, but it questions whether the bill is the best way to achieve that.
You seem to suggest that because of changes to sentencing under common law, the bill would not provide any additional protection to workers than is currently available under the common law.
Yes. The previous panel asked whether particular types of worker might have less protection than others. The answer is that obviously they have the same protection, because the sentencing regime that operates in the courts is identical in each case.
Other witnesses have suggested to us that the point of the bill is not so much the sentencing that is available to the courts as the fact that having a specific law on the protection of workers sends a strong message that assault, harassment and abuse of workers is unacceptable. Is that a reasonable argument?
It is a reasonable argument, but I am not sure that it has any practical effect. More effective means of dealing with the matter would require to be raised with the Crown. Domestic abuse is an example of something that is dealt with more successfully and taken much more seriously by prosecutors now than it was in the past. That involves various measures. For example, the police will keep people in custody overnight before they appear in court if they have been involved in an incident of domestic abuse, and all cases that are reported are prosecuted in so far as they can be prosecuted and there is sufficient evidence.
We have evidence that there has been an increase in the number of prosecutions and convictions under the Emergency Workers (Scotland) Act 2005. Is that a result of more assaults on emergency workers being reported or is it simply a transfer of prosecutions from the common law to the new legislation?
I do not have any figures on that. The Crown Office would have to give you that information. All that I can say is that, anecdotally, any case that I have come across in which a worker has been assaulted has been taken seriously by the court. If a bus driver is assaulted in the course of his employment—if he is spat at or whatever—that is always taken seriously by the sheriffs and the courts in which I practise. Similarly, even before the 2005 act, cases involving hospital staff were taken seriously by the sentencers when such cases were prosecuted.
I have one more question before I open it up to other members. Your written submission states:
When we prepared the submission we were concerned that the bill would add to what the prosecution needed to prove to secure a conviction. For example, the prosecution would need to prove the proximity of the individuals, the status of the complainer as an employed person or a worker, and the knowledge on the part of the accused person.
That is pretty much where we are coming from in our submission. The point is simply that the bill would detract from the current common-law flexibility because it would place an additional burden on the Crown, which would have to prove that the person was a worker, that the accused knew that they were a worker, and that the worker was acting within the scope of their employment. As we heard, the penalties under the bill would be exactly the same as the penalties at common law, where the crime of assault would be prosecuted summarily.
I said that that would be my last question, but I would like to follow up on that particular point. Presumably there would have been similar concerns about the burden of proof in relation to the Emergency Workers (Scotland) Act 2005, yet the number of prosecutions under that legislation is increasing rather than decreasing. I am not sure whether that is because there are more assaults or because offences are being transferred from the common assault category to the category of assaults against emergency workers. I am trying to get that information.
As I understand it, the Law Society would have voiced those concerns at the time. One difference between the Protection of Workers (Scotland) Bill and the Emergency Workers (Scotland) Act 2005 is that section 1 of the act includes hindrance as well as assault, which means that there is greater latitude.
The previous panel told us that the level of assaults in the small business sector and ScotRail seemed not to have increased in recent years. It is easy to prove cases of assault when you have witnesses, but the issue of verbal abuse that leads to trauma for people-facing workers does not seem to have been tackled, although it is probably prevalent.
It might be worth noting that abusive conduct on the part of a customer—shouting and swearing, for example—is punishable by a sentence of up to 12 months on summary complaint, as well.
So the prosecution service is not taking forward as many of those cases as the public-facing workers organisations would expect. Assaults seem to be taken more seriously than instances of abusive behaviour.
That might be so, but the Crown Office would have to respond to that. It is not a matter over which I have any control. I am a small businessman, and I would be indignant if one of my staff were abused by a member of the public in the course of their employment and the prosecutor did not do something about it. If I were in that situation, and the matter were reported, I would expect it to be taken seriously by the police and the prosecutor.
There is nothing that I can usefully add to that, other than to say that, in relation to other legislation, you might want to consider an aggravation provision, which would cover all crimes and offences that are prosecuted under common law. Such a provision exists in relation to racial and religious offences. If the proposal goes ahead, that could be considered.
Is there a problem for workers such as railway workers who are presented with the alcohol-fuelled late-night situations that were described earlier, as it is difficult for them to report on the incidents in detail because of the amount of time that it would take? Might we not be getting to the bottom of why these events take place?
I agree.
Bill, you said that there were different ways to deal with aggravated offences, and you spoke about domestic violence and the marking of offences. How and why has the process around the reporting of domestic violence cases changed?
My understanding of the history is that by prosecuting certain offences publicity was given to what was perceived to be a problem. That actually turned out to be a problem, and the Crown recognised as much by changing its policies in a way that some sheriffs have recently made adverse comments about. There is a degree of inflexibility in some of the guidelines that the Crown appears to be enforcing, but that is a matter more of adjusting the guidelines than of passing or imposing new legislation.
Do you accept that those guidelines reflect the views of Parliament and, particularly, the opinion of the wider public about what is socially acceptable and the feeling that, for example, degrees of domestic abuse that the courts did not pursue rigorously a generation ago should now be pursued?
Yes, I agree entirely.
Does the same hold true for the way in which the Crown Office marks certain offences, for example the second-offence knife offenders you mentioned? Although the guidelines issued by the Lord Advocate or the Solicitor General for Scotland are only that—guidelines—do they reflect the views expressed in Parliament and in the wider community?
Yes.
Is your critique of the bill based on the view that legislation is not appropriate or do you acknowledge that legislation can also be an appropriate vehicle for expressing public opinion and for allowing Parliament to give direction to the prosecuting authorities and the courts on the degree of seriousness with which a particular offence should be treated?
I am not sure that legislation would assist in that respect. Certainly it is very important to debate the matter and the more debate we have, the more attention the public will pay, as long as such debates are reported accurately and thoroughly. I do not think that passing legislation will of itself make any difference, but discussion of problems is very worth while and should be encouraged.
That is helpful.
It is a perfectly reasonable viewpoint. The question, though, is whether, as a matter of practical reality, we need legislation that the courts must enforce when it is not necessary for them to take that particular approach.
You have expressed your clear view on the substance of the bill. Do you support the continued use of the Emergency Workers (Scotland) Act 2005 or do you think that it does not serve any additional purpose?
It is not necessary now because of the change in the sentencing regime that I mentioned earlier, as a result of which you can receive a longer sentence under common law than you can under the provisions of the 2005 act.
Correct me if I am wrong, but could that change in the sentencing regime be reversed without Parliament’s explicit consent?
No. The change was enshrined in the Criminal Proceedings etc (Reform) (Scotland) Act 2007.
So any reversal would require parliamentary approval.
Yes.
That was very helpful.
I should declare that I used to be a practising civil solicitor and that I am still retained on the roll of solicitors, although obviously I do not practise any more.
The Crown could indeed ask for the alternative conviction. As I understand it, the bill contains no proposal to change the common-law offence of assault. An assault would still have to take place. We very much appreciate the perfectly fair public policy point about the legislation sending out a message, but you would still have to discharge evidential burdens that you would not have to discharge if the charge was libelled as the common-law crime of assault. If the fiscal depute was not able to secure a conviction under what would be the Protection of Workers (Scotland) Act, he or she would simply have to ask the court to convict under the common-law offence.
Could that happen mid-trial or would such a decision have to be taken at the beginning of the process?
When the Crown seeks a conviction in a case in which a statutory offence has, for some reason, not been made out, it is entitled to ask for an alternative charge of common-law assault at the end of the case. The bill itself says:
I just wanted to be clear on the point. Although the evidential burden to secure a conviction under this proposed legislation would be greater, the Crown would not lose a conviction if it proceeded under the bill’s provisions and subsequently decided to ask for the charge of common-law assault instead.
That is correct.
That is helpful.
From my experience of dealing with workers who have been the victims of the sort of crime you describe, the courts take such cases seriously. I do not know whether the Crown has too many other things to do, but it would have to answer that question. Of course, some courts are much busier than others, and perhaps some cases are not dealt with as effectively as they might be. As I say, that is a matter on which the Crown can offer its own comments and reassurance to the committee. I hope that cases are being taken seriously and are not simply being brushed aside because, for example, there are too many other things to do.
Absolutely. On any view, the situation to which you refer is deplorable. Clearly, it may be a matter for police guidelines to officers and, subsequently, Crown Office guidelines. For what it is worth, I will recount an example from my past employment with Fife Council. As clerk to Kirkcaldy district court, I recollect the court taking a very dim view of anyone who was involved in an assault or a beach of the peace at the Victoria hospital in Kirkcaldy or elsewhere.
Is it a fair summation of your evidence to say that when that type of incident goes before a sheriff the case is treated seriously and dealt with accordingly, but you are not sure whether the Crown treats it seriously.
I agree with that summation.
I have a general point that leads on from something that Rob Gibson brought up. A lot more drinking goes on in Scotland in socially and technically awkward places, such as on trains, than is the case on the continent.
I understand that licensing boards now have a locus in the matter. I stand to be corrected, and I would have to check the terms of the Licensing Act (Scotland) 2005, but I understand that a change was made and boards can now consider alcohol sales on trains.
At one point in your evidence you said that you believed that the bill would detract from common-law flexibility.
Yes.
Does the Emergency Workers (Scotland) Act 2005 detract from common-law flexibility?
It can do, because it involves having to prove a situation and discharge evidential burdens that would not have to be discharged under common law. The point about emergency workers is taken, but whether they are afforded additional protection is a matter of debate, certainly with regard to the sentencing provisions, which are now exactly the same. It could be argued that there is a need for the bill from a public policy point of view. I entirely accept that it may be that assaults should be seen to be prosecuted under statute rather than common law but, from a practical point of view with regard to securing a conviction and thereafter sentencing, I am not sure that there is much difference.
So, using that sort of logic, you believe that the bill is pointless.
I would not go as far as to say that it is pointless. If the bill comes to fruition, it might send out a message, as was alluded to earlier. However, from a purely practical point of view, it is—
That same analysis applies to the Emergency Workers (Scotland) Act 2005. You believe that the common law protects all members of the public from assault, including workers, as you have said. Therefore, you believe that the bill is not necessary, but you also believe that the 2005 act is not necessary to achieve that effect.
We see that against the background of the 2005 act being superseded by the change in the sentencing regime. We are not saying that people were not entitled to greater protection than they received under the former common-law regime. However, there has been a change and things have moved on. That is the background against which—
So you are saying that, since 2007, the need for the emergency workers legislation has disappeared because the sentences that are available under common law are equal to those under that legislation.
It has been superseded in that sense.
So when ministers of the present Administration decided, after 2007, to extend the groups of workers who are covered by the Emergency Workers (Scotland) Act 2005, in your opinion that was a pointless exercise.
It was unnecessary.
Your perspective is that the bill is unnecessary and that the actions of ministers in the present Administration in extending the 2005 act were also unnecessary. Ministers say that there was a purpose to extending the 2005 act, but you differ from that. You do not think that it was necessary, although ministers might think that it was, from a public policy perspective. In effect, your attitude to ministers extending the emergency workers legislation and to me trying to bring in the bill is the same.
In what sense?
You do not think that it was necessary for ministers to extend the emergency workers legislation and you do not think that it was necessary for me to introduce the bill.
That is what we are saying, because the legislation is not necessary. However, as we said earlier, public debate is being raised and that is to be encouraged. It is helpful from our point of view to be able to try to assist in increasing public knowledge of the issues.
Absolutely. As members have said, we need a debate about better public education, more individual responsibility and more awareness of the dangers that excessive alcohol consumption can bring. All that is taken as read. However, from a purely legislative point of view and from your analysis as legal practitioners, you think that the bill is not necessary and, equally, that the extension that present ministers made to the Emergency Workers (Scotland) Act 2005 was not necessary. Is that correct?
Yes.
And you also believe that, despite the present Administration’s support for the 2005 act, there is no need for that stand-alone legislation, because sentencing has now caught up.
Yes, that is right. We are saying that things have moved on and that the concerns that people had up to 2005 or thereafter have been taken into account by the changes that have been made.
That is what I am trying to get at. The legal profession’s view, which has been fairly consistent, is that we should use current powers, particularly when sentencing provisions have caught up. There is a difference of opinion between the legal profession and me as an individual promoting a bill and Government ministers. They are on the same side as me when it comes to the emergency workers legislation, which you believe is not necessary. Equally, you believe that my bill is not necessary. Your attitude to my bill is exactly the same as your attitude to the emergency workers legislation. Some people support that legislation but not my bill, but you believe that neither is necessary. However, it is for us as politicians to make a decision about what we believe the law should say and what the impact on public policy should be.
Yes, of course.
There are no further questions, so I thank Bill McVicar—I got it right this time—and Alan McCreadie for their evidence.
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