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The next item is evidence on the Offences (Aggravation by Prejudice) (Scotland) Bill, for which the Equal Opportunities Committee has been appointed the secondary committee for stage 1 consideration. The Justice Committee, as the lead committee, is considering the general principles and main provisions of the bill.
I noticed in the papers that we were given that at some point we said that we were in favour of including gender as an aggravation. Things have moved on since 2004, and much more work has been done on violence against women—on policies, the gender duty and so on. For a number of reasons, we no longer think that it is appropriate to include gender as an aggravation in the bill. For example, including gender as an aggravation would imply that only some forms of violence against women are because of their gender. Unfortunately, all violence against women is due to the endemic misogyny in society. However, how could you prove that in court?
Thank you. That was a helpful statement to start off with. Who would like to go next—Sandy Brindley or Niki Kandirikirira?
I do not mind going next.
Engender supports the views of Scottish Women's Aid and Rape Crisis Scotland on the issue. We had a meeting in April, at which a lot of violence-against-women organisations and Amnesty International got together to discuss it. We have moved on somewhat since 2004, and there has been an acknowledgement of the relationship between power inequality and violence. A gender aggravation would imply that some forms of violence against women, including some crimes of sexual violence against women, are not misogynistic, therefore proof of the misogyny that is inherent in sexual violence against women would be reliant on other forms of evidence. That would be problematic for us. We recognise that a lot of sexual violence is misogynistic, but the mechanisms would not serve the purpose and might even reinforce the idea that such violence is not misogynistic.
The value of the evidence session is that you can explain how your thinking has evolved.
I am still not convinced that we should not add the two extra aggravations of age and gender to the bill. At the moment, courts can take the motivations of an offender into account when sentencing, but that is not mandatory. You say that, if a gender aggravation were included in the bill, it would make things more difficult for women. Given the low rates of reporting and sentencing for crimes against women, would it make it even more difficult for women to report a crime against them if a gender aggravation were included in the bill? Would it provide more leeway to sheriffs and judges to give more lenient sentences to the perpetrators of crimes against women?
If the word "gender" were inserted into the bill as an aggravating factor, it would read:
Would it be difficult to prove that in court?
It would be difficult, because the concept is so nebulous. Something somewhere needs to be looked at, but not in this bill. As Sandy Brindley and Niki Kandirikirira have said, there are merits in considering introducing another piece of criminal justice legislation. I do not think that the wording on gender-based violence sits with the wording in the bill. How would the Crown Office determine that an aggravation was to be attached because the crime was perpetrated due to the person's gender? How would it get the evidence for that, and how would it cross-examine on it? It could end up confusing the court or the woman.
I have a quick question, which I hope will not be too awkward. You have spoken to a range of groups. Do they all agree that gender should not be included in the bill as an aggravation? If some groups do not agree with you, would you tell us their reasons?
I should say first that it is absolutely right to consider gender in relation to the bill. Not addressing gender when we have the opportunity to do so would be an obvious omission. However, from our discussions, it is hard to see how including gender would assist us in practice. When we met the Equality and Human Rights Commission, there was consensus about that.
So no voice markedly disagreed.
Not that we are aware of.
The last time that the issue was discussed in full was in 2004, but, as I said, we had another meeting earlier this year to discuss the issue in terms of the bill and the practicalities. We agreed that the concept was fine but that it just would not work in practice. None of our sister organisations has said that it would work in practice. We would be interested to hear other views, but we are not aware of anyone feeling that the inclusion of gender is a burning issue.
You have spoken about the problems with incorporating a gender amendment in the bill. However, you also said that you would be keen to consider offences of incitement to hatred that related to pornography or domestic abuse, for example. How would such offences fit into the legislative framework?
I know that the Equal Opportunities Committee has considered the issue of pornography before, and it certainly requires further consideration. Extreme pornography will be addressed in the proposed criminal justice bill, but that will not cover the whole issue or take a harm-based approach. We are keen for such an approach to be taken to incitement to hatred in relation to domestic abuse.
The forthcoming criminal justice bill might cover the issue. Careful debate is required. We want an aggravation that is workable and worded in such a way that perpetrators cannot exclude themselves from it. Prosecutors have to be able to work with the aggravation. We want to ensure that the aggravation produces an end result. What would happen if we achieved the inclusion of such an aggravation? Would sheriffs take it into account and give more punitive sentences?
Can you explain a little more about how the aggravation would work? How would it be proved?
In our submission, we quoted wording from New Zealand's Domestic Violence Act 1995. I can pass on a whole swathe of information to the committee. The 1995 act defines domestic abuse in terms of behaviour and the situations in which it occurs. For example, it refers to relationships. We suggest that, if an assault were perpetrated in a domestic abuse context, the aggravation would be attached to it. Not only would the perpetrator be convicted of the original offence, they would receive an additional punishment, more severe than normal, because the offence was aggravated by domestic abuse, as described in the legislation.
Domestic abuse can be gender neutral.
Yes.
Would the aggravation relate to the fact that the offence happened at home? Burglary is regarded as a more serious offence than other thefts.
The legislation would have to be gender neutral. The New Zealand Domestic Violence Act 1995 says:
How long has the New Zealand act been around?
It has been in force since 1996. I can e-mail the text to the committee for your perusal. It may be a starting point. A definition from the New Zealand criminal justice system might work in our system, as they are quite similar.
We would be interested to see that act. Has the number of domestic abuse crimes reduced as a result?
I cannot tell you just now, but I could find out.
That would be helpful.
I did not notice until yesterday that the cabinet secretary had said that.
It did not influence our thinking.
When the working group on hate crime's initial report came out in 2004, a number of women's organisations were quite unhappy with its approach to gender and its views on the impact of gender. Many of the initial responses were reactions to the report. However, after reflecting on the practicalities, it is fair to say that we all agree that including the gender aggravation would not be the most helpful way forward.
It sounded good at first, but when you considered how it would be implemented and how it would work in practice, you thought that unintended consequences might lead to difficulties.
We have held two round-table meetings, one of which we called in April. In addition, the Equality and Human Rights Commission asked for our views, so we have had several opportunities to sit around and thrash out the issue. I think that there is consensus.
It has been interesting to hear your views. I understood that there had been movement.
I understand exactly what you are saying. However, we are worried about how such an offence would be proved.
In that case, how would you prove an offence under any of the strands?
It would probably be easier to prove that hatred had been directed at someone as a result of their sexual orientation or transgender identity than to prove that a crime was committed against someone purely because of their gender.
But they could say that with regard to any of the strands that are covered in the bill. Someone who was accused of attacking a person because they were gay, for example, could always claim that it was just an opportunistic attack. No matter the victim, the argument will be the same: this crime will be difficult to prove. You are actually making a strong argument against the bill itself, because the perpetrator could always deny the cause of their violence.
This has obviously been a useful exercise, as it has allowed you to analyse and assess the suggestion that gender be included in the bill and to come up with a number of problems with it. As Marlyn Glen has said, the same problems might well arise with the bill's other provisions. It is good that you have explained to the committee why you think that the move would not work, and I hope that your views will influence the Justice Committee's own consideration of the bill.
I thank the witnesses for their evidence. Given the consensus of your organisations and others on this issue, it would be foolish of us to go against your recommendations. I have certainly found your comments persuasive, although I do not think that they necessarily rule out the bill's application to the groups that it seeks to cover.
At the time, we considered the pros and cons of retaining the common-law approach and introducing a new statutory offence. The drawback of a statutory offence is that it is an all-or-nothing move; if the domestic abuse element of such an offence cannot be proved, the whole thing will fall. However, if we take the aggravation route, the original crime will stand even if the aggravation element is not proven. That might be the way forward, but we will need to look at what has happened with the New Zealand domestic abuse legislation; we will also have to discuss with the Crown Office how such an offence might be worded. That said, we do not believe that such an offence should come under this bill. It should be something quite separate.
The Crown Office has said that
But it is not a statutory or official form of aggravation. I would hope that in cases in which domestic abuse was an issue the Crown would flag up that the crime was perpetrated within that context. However, there is no obligation on the court to give more serious consideration to the issue. If on the other hand a statutory offence of aggravation has been proven, it must impact on the sentencing; at the moment, any such move is purely discretionary.
It has been suggested that we follow up incitement to hatred against women and consider, as Niki Kandirikirira has mentioned, a more general overhaul of the justice system with regard to the gender duty.
As you suggest, the Justice Committee is considering the Sexual Offences (Scotland) Bill, which looks at the legal framework, including the definition of rape. One of the things that is quite marked about the bill is that it does not look at evidence. We are concerned about how sexual history evidence, character and medical records are used in sexual offence trials. You might have seen last year's evaluation of the current legislation in this area, which found that the legislation has somehow made things much worse and that seven out of 10 women are now virtually guaranteed to be asked about their sexual history in court. Since the evaluation came out, there has been some debate about whether the problem is with the implementation of the legislation or with the legislation itself. That definitely needs to be considered further. My view is that there needs to be further legislation. However, we get the sense that that issue will not be included in the Sexual Offences (Scotland) Bill, so I would certainly support its being considered elsewhere.
It is interesting that Louise Johnson has enunciated the position that she has, because a similar discussion was had around the original legislation, in which religious bigotry was included. At one stage, there was a member's bill that looked at addressing religious bigotry. The route that you propose in relation to the aggravation is the one that gained the most support among the people who gave evidence on that member's bill, and it was enshrined in the legislation subsequently. It is reassuring that we seem to have got it right on that occasion. I hope that we will get it right this time.
I do not think that the bill is a missed opportunity; it is a different opportunity. Given the wording of the bill, we have concerns about how it would work. What would be the result of it? Would it be used? Would it be used by the prosecution? What would sheriffs do with it? Would they think that it was something nebulous and get annoyed by it, which would impact on sentencing?
And you do not know when.
We do not know when, but there is hope. A criminal justice and licensing bill is coming up, but we do not know whether something could be included in that. We would like to get some sort of commitment that the issue will be looked at further to find a workable solution. Any solution that is found must be workable; it must be able to be applied; and it must be accepted.
You referred to the criminal justice system almost as the favoured option. What about the Sexual Offences (Scotland) Bill? Would it sit within that?
Are you talking about a gender aggravation?
Yes.
I do not think that a domestic abuse aggravation would fit in the Sexual Offences (Scotland) Bill.
Did you mean something about violence against women in general?
Yes.
I do not know. I think that that might detract from what is happening in the Sexual Offences (Scotland) Bill. We have come so far with that bill; it is the first attempt to put in legislation everything that is covered and we do not want anything too controversial to torpedo it. Sandy Brindley might have a view on that.
I was wondering in particular about incitement to hatred. I think that you mentioned pornography as an example of that. Would that not fit into the same category?
That would be quite a significant amendment. I am not aware that we have discussed that in relation to the Parliament taking evidence on the issue of incitement to hatred. I am not sure that the Sexual Offences (Scotland) Bill would be the best place for that, but it would be really helpful to consider it.
I agree.
By making the suggestion, discussing it and perhaps deciding at the end of the day that there is a more appropriate place for the gender issue, you are at least raising the issue and are almost setting things up for the next time that it is considered. It might be worth considering whether you can usefully make some comments. At the end of the day, you might decide to withdraw your suggestion or the committee might not look at it, but at least you will have started to get your foot in the door. That is just a suggestion.
I have a question about how the bill might be amended. However, this evidence session is an opportunity for the three organisations present to call for a real commitment for action to be taken soon, whether in the Offences (Aggravation by Prejudice) (Scotland) Bill, the Sexual Offences (Scotland) Bill or the forthcoming criminal justice bill. You should be calling for a commitment to make something happen quickly. Putting other people first is commendable, but I do not think that this is the time for us to be defensive. You have to watch that this is not a missed opportunity.
We do not have any objection to that.
We do not have any objection to it. That might be the way to bring in other groups.
Do you think that it might be a good idea?
Yes. I do not think that we would lose anything by making that amendment. In due course, something different might be introduced. Having a catch-all provision in the bill would be useful, because it would certainly allow us to discuss what would be the most workable option.
The working group recommended that an amendment could be made in future by statutory instrument. Do you support that?
Yes.
So far, the evidence has been informative and useful. The three witnesses have given evidence on the basis that things have changed over the past four years and that we should be aware that there is a new approach—which has come from the organisations that work particularly with women on a gender basis—to how we should respond to misogyny and aggravation in terms of gender.
That may be the STUC's argument, but that is not where we took our analysis from. Our analysis is that, because some forms of violence against women would not be an aggravation, it would not necessarily serve our purpose to include such an aggravation in the bill. The idea that including an offence of aggravation based on gender would dilute the focus on other things was not in our discussion. That point may have been made by the STUC, but it is not where we are coming from.
I do not find the STUC's reasoning helpful. As Marlyn Glen said, hatred towards women should not be seen as less important than hatred towards other groups. The suggestion is perhaps symbolic of the fact that sexism may be a bit more invisible than other forms of discrimination. We came to our position not for that reason but very much on a practical basis. As Malcolm Chisholm outlined, there is a real issue with crimes of hatred against women. Work needs to be undertaken on that, but the bill is not the route for pursuing that.
Without in any way wishing to undermine the importance of the issue, would we be wrong to have gender aggravation tacked on to the bill just for the sake of getting something done? Would it be better to have a properly worked-up bill that dealt specifically with gender aggravation?
The danger with any add-on is that people have to work with something that has not been thought through properly. If an offence cannot be prosecuted and the judiciary is uncomfortable with it or has a downright resistance towards it, that will simply aggravate the situation and make it worse. We should not go pell-mell into something just because a bill is before the Parliament and we should not think that no further opportunity will arise. We certainly hope that political policy to advance the work on violence against women will provide further opportunities to engage with the Scottish Government and with members of the Scottish Parliament.
The timing for the bill allows us plenty of time to consider the issue and to consider the idea of including it by statutory instrument. From the point of view of the organisations, the idea of multiple discriminations will be important. Does the panel want to comment on the fact that women with disabilities and women in the LGBT communities will be covered by the bill?
Absolutely. That is a helpful point.
I am not sure whether linking together multiple discriminations would help, given that the bill deals with aggravations. Aggravations are usually very specific, so an offence would be aggravated by prejudice on the basis of, for example, gender or disability. Is the suggestion that there should be a multiple aggravation?
No, I was not suggesting that. I was just saying that women will be covered by the bill. It is an interesting point that a lesbian with disabilities suffers multiple discrimination, which the bill will need to address.
Certainly, the multiple discrimination aspects need to be considered.
That brings us nicely to Sandra White's question.
This is aimed at Niki Kandirikirira—not at her personally, but she might give an answer that is different from the Engender quotations that I have here—and is about the recording of crime. If gender was included in the bill, there would be a statutory duty to record such crime. I find it unbelievable that, given all the evidence, we do not already record crime based on gender. I was also amazed by the Crown Office's comment that the computer system could not cope with that. I find that not just ridiculous but disturbing. However, in Engender's submission to the working group on hate crime—as I said, the submission might not have been written by Niki Kandirikirira, but it came from Engender—it was suggested that improvements in recording and monitoring the potential increase in sentence length would send a clear message to the courts and to the public about the unacceptability of violence against women.
The gender duty itself offers the opportunity to demand good-quality gender-disaggregated data across the board on conviction rates and on reporting at all levels. The gender duty can be a powerful instrument because many of the problems that we face are about institutional sexism in the criminal justice system and at societal level. The term "aggravation" is clumsy and will not really help us in trying to deal with the problems—it is not subtle enough, in some ways.
Like Malcolm Chisholm, I am undecided whether the Offences (Aggravation by Prejudice) (Scotland) Bill should include the strands of gender and age—we will deal with the latter at a later date. However, if the groups that work with women, and which have the expertise, say that including those strands in the bill would not be any good, I would obviously bow to their vast experience. However, if gender were not included in the bill, I would be worried about what road we could go down, apart from the gender-duty one, to make it mandatory for crimes to be recorded by gender. Can we put the gender strand in, for example, the Sexual Offences (Scotland) Bill or the proposed criminal justice bill?
It could be put in the proposed criminal justice bill. You need to look at current criminal statistics because there are all sorts of statistics on all sorts of things. I cannot remember off the top of my head how they are recorded, but they are split according to gender. For instance, police statistics on domestic abuse are split into the gender of perpetrator and gender of victim, to use the terminology. Some criminal statistics are split into gender. It depends what we are trying to achieve—for example, are we examining what crimes are perpetrated more often against women or what types of behaviour women more often face?
I asked about evidence gathering because I understand that the Scottish Government currently does not record crime according to gender. Obviously, in instances of sexual assault or rape, it is easy to record the crime according to gender. However, if we cannot get the gender strand included in the Sexual Offences (Scotland) Bill, can we get it into one of the bills that Marlyn Glen mentioned? The panel agreed that we could consider adding the strands of age and gender to the Offences (Aggravation by Prejudice) (Scotland) Bill. If we had evidence that showed that crime against women—gender crime—was overwhelmingly prevalent, we would be able to propose including the gender strand at a later stage of the bill. That was why I asked my initial question. Surely if we had the evidence, it would be easier to include the gender strand.
I will add to what Louise Johnson said. Sandra White is right to highlight data about violence against women as a crucial issue because the data are incredibly poor, particularly on rape and sexual assault. It is said that only 2.9 per cent of rapes that are reported to the police lead to convictions. We know that the data are not entirely reliable, but they are all we have. There seems to be no way of linking police statistics with court statistics. It is incredible that we cannot track in the way that we might expect.
The Equal Opportunities Committee could recommend to the Scottish Government that the office of the chief statistician undertake work in that area. Such work would be helpful and would support what we are doing.
I wonder sometimes whether we automatically always look to legislation to solve all problems. There is certainly an awareness-raising issue in this area. If we look at drink-driving, many years ago it was not considered to be the enormous crime that it is now considered to be. However, many awareness-raising television adverts and so on highlighted the issue, and similar work has been done on domestic abuse. Can the panel comment on that? How could we bring violence against women a little bit more to the public's attention and accentuate the fact that certain things are not acceptable, as Niki Kandirikirira said?
I can comment on the Judiciary and Courts (Scotland) Bill, which was recently enacted. There was much discussion during the bill's passage on the proposals for judicial training, as it was called. The Judicial Studies Committee does a lot of good work on training or awareness raising for the judiciary. However, as part of that, we would certainly like a planned session on domestic abuse, rape and sexual assault, and violence against women. When the Lord President reviews the training situation, we would like those issues to be taken on board in a more formalised training programme. As I said, we have the "Her Majesty's Inspectorate of Constabulary for Scotland Thematic Inspection: Domestic Abuse", and ACPOS is taking steps to rationalise training throughout Scotland, so we would work with ACPOS on that. It would be useful to report back to various committees and MSPs on that. The whole issue is about awareness raising. I do not know what my panel colleagues have to say about campaigns.
Can I just stop you there? You have sort of gone to the other end of things. Given that prevention is better than having to deal with the crime itself, can we look more at doing something in the education system to address the issue?
One of the issues around the Offences (Aggravation by Prejudice) (Scotland) Bill is that we cannot imagine any act of male violence against women that is not gender aggravated. In saying that, we would have to prove gender aggravation, which sort of undermines the idea that all violence against women is misogynistic and gender-aggravated crime. It is important to bring in some of the work that we have been doing around recognising that violence against women is about gender power relations as a cause and a consequence. The move to broadening out a domestic violence strategy to a much wider violence against women strategy would be a really useful way forward. Progress has been made on that, but we must look at broadening the strategy and acknowledge that violence against women is about gender power relations. We are not talking about opportunism or guys looking for a quick sex fix—it is misogyny in action. The problem is not limited to Scotland, but is global.
Can you say that every single attack on a woman is aggravated by gender?
I am trying to imagine one that is not.
If someone had attacked Myra Hindley because of the crime that she committed, would that attack have been gender based?
If someone wrote a thesis on the issue, they would probably deduce that it was, because Myra Hindley was vilified by the press in a particularly gendered way. I would argue that.
That is interesting.
A number of members are looking at the issue of prostitution. As you say, violence against women is not limited to domestic violence. I and others hope that new legislation will define prostitution as violence against women, in line with the Swedish model. That would create a new ball game, as we have statistics on how many people are involved in prostitution. The problem is all-encompassing, but there are moves to classify prostitution as violence against women.
It is important to make links between different forms of violence against women, such as prostitution, pornography and sexual violence. We must take a preventive approach. The phrase "a rape culture" is often used in relation to rape. It is difficult to prove that there is a causal link between the availability of pornography and the prevalence of rape, but pornography contributes to a culture in which women's bodies are objectified and are seen as being accessible in any terms. I have suggested that pornography should be considered as incitement to hatred against women. In my view, until we start to tackle pornography, we will get nowhere near the root causes of sexual violence; I encourage the committee to think about that. It is necessary to consider what is included in pornography—especially these days, with the internet. If the level of hatred that is expressed against women in pornography were expressed against any other group in society, it would not be tolerated. The violence becomes invisible because it is sexualised violence.
You mentioned the New Zealand domestic violence laws as an alternative way of solving some of the problems that we face. Can you provide us with other international examples of legislation that would be worth pursuing?
For this discussion, I have not looked at any laws apart from those to which members have referred. However, I can undertake to look at parallel legislation in other jurisdictions. In respect of the USA, for example, that could be difficult because the legal system is quite different from ours. It is necessary for us to draw parallels between the system and legislation that we are examining and our own, because evidential and prosecution processes are sometimes different. There is gender aggravation legislation in the States, but the literature that we have examined suggests that it is not used much. I do not know why, but I can find more information and pass it to the committee. Nineteen states in the USA have gender aggravation legislation, but we do not hear much about it and do not know whether it is working.
It would be interesting for us to get an interstate comparison. If some states are using the legislation and others are not, that may provide some interesting insights.
Yes. We need to find out whether the legislation is not being used because it is unworkable, because people are not coming forward or because offences are not being prosecuted under it. Although we must take into account the differences between the systems and the limitations of some comparisons, it would be useful for us to examine the matter. At a meeting in April, we discussed looking into it, but time constraints and intervening circumstances prevented that. However, I will see what I can find for the committee.
That would be very welcome.
In the US, 19 out of 41 statutes cover victims who are chosen by reason of gender. To charge a person with a hate crime, prosecutors must have concrete and admissible evidence of a bias. The offence has been reserved largely for cases in which perpetrators did not know their victims. There has not been an overwhelming number of gender-based crimes reported, and the legislation is used mainly for racially and religiously motivated crime.
In conclusion, would panel members like to make any comments on the general principles or provisions of the bill, so that we can pass them on to the lead committee, which is the Justice Committee? Who would like to start?
I will leave it to the lawyer.
We commend the bill and have no objection to its provisions. It is important for us to look at crime that is defined by sexual orientation and transgender identity, because crimes against LGBT people have taken a back seat. The bill brings that criminal behaviour to the fore and is a good move.
So you have no problems with, or reservations about, the bill's provisions. Are you not concerned that we will run up against the same difficulties with sexual orientation, transgender identity and disability that you ran up against with gender? Are the definitions in the bill clear enough?
I have not given full consideration to issues other than gender, but no glaring difficulties jumped out at me—I did not think, "This'll be very hard to prove." If anything occurs to me, I will be happy to pass it on, but I have seen no major inconsistencies or problems in the bill.
We support the bill. Further work is required in relation to hate crime against women; I am sure that the committee has considered that point. We have made two proposals today, on incitement to hatred and on domestic abuse aggravation, which Louise Johnson mentioned. Even if it is not recommended that gender be added to the bill, further work on the issue is required.
We have discussed the issues of gender and disability and the distinction between what happens in private spaces and what happens in public spaces. What are the implications of abuse of disabled people by their carers? Will such offences be seen as being aggravated by the fact that the victim is from a disabled identity group, or is the main issue the relationship between the carer and the cared-for person? The same debate can be had about domestic violence. That is one issue to flag up, although I am sure that disability groups have already done so. It may have an impact on other legislation; it is also a concern in relation to gender.
I have a point of clarification, which shows my ignorance about the bill.
We can raise the issue in our report.
I wanted clarification.
If it is an offence, it is an offence, irrespective of whether it takes place in a public or private care home.
Unless there is any caveat or limit to the provision, it should be all-purpose. The Adult Support and Protection (Scotland) Act 2007 covers the kind of behaviour that Sandra White mentioned. It empowers local authorities to enter premises, which I think would include care homes, if they suspect that a vulnerable adult is at risk.
As far as I know, that provision covers only public premises, but not private premises.
Does it not? It covers houses.
I will need to check that, because the issue was raised with me.
The 2007 act allows social workers to go into someone's house if there is a person there who is, by virtue of age, a disability or a mental disability, experiencing some form of harm. I cannot remember the exact definition. I think that the act probably also covers care homes—that provision would probably cover disabled people. Unless the bill has any limitation, the provision would be all-encompassing.
I would like clarification of that, convener.
Yes, because there can be private carers in a person's private home as opposed to a care home. We will flag up that interesting point.
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