Chamber and committees

The approach that I have taken is primarily one of deterrence. I have referenced that a lot today, because I believe that that is what the bill could achieve—people would think twice about desecrating war memorials, given their significant importance to our communities.

You have raised an interesting concept. I am not entirely sure that that would be the right fit for war memorials, but such discussions could be broadened if the bill reaches stage 2. That could make the offence similar to those that are dealt with in the High Court. Right now, the offence fits under the sheriff court level, and I do not want to change that, because it is important that we use the right levers of our court system to ensure that, if a sentence is necessary and fits the crime, it is handed out proportionately.

We have to look at all the issues—I am not saying that those discussions should not be had. Indeed, if the committee wished to, it could explore that idea. However, I believe that what I am setting out in the bill is the best course of action not just to raise the importance and significance of war memorials, but to highlight the impact of the crimes on communities, on veterans and on our armed forces.

What I do not want to do is put anyone into a box. It would be very unfair to automatically say that, if a war memorial is desecrated, a younger person or someone in a certain age bracket will have done it. I think that that would be wholly unfair because, as we have seen in many different examples, we are talking about people of all ages and all backgrounds. Therefore, as I have said, I do not want to put people into a box.

Having looked at certain instances in my research, I think that it is clear that there are certain reasons why people decide to desecrate a war memorial. You have to look at these things in isolation and on a case-by-case basis; this is not something where you can say, in a blanket way, “You have desecrated that war memorial, so you are a terrible person.” It could come down to a lack of education, as we have just been discussing, or there could be mental health issues. There could be lots of reasons encompassing someone’s desecration of a war memorial.

Therefore, you have to look at this as a whole, which is why I talked about there being a neutral impact. These things usually happen in a silo, but, as I have said, they also seem to happen at heightened points in our society. We have seen that in recent times—in 2019, there was the beginning of the pandemic and, in 2021, we were still in that space. War memorials seem to be desecrated more frequently at certain times.

I am trying to raise the status of war memorials and make sure that we have a robust court process, should we believe that the level of the crime is sufficient for that.

That is an interesting point. If I may, I will touch on proposed new section 52A(4)(d) of the 1995 act, which provides that

“something has a commemorative purpose in respect of armed conflict if at least one of its purposes is to commemorate one or more individuals or animals”.

In the bill, I use the definitions that are used by the War Memorials Trust and the Imperial war museum, and they replicate the definition that was used in the private member’s bill that was introduced by Jonathan Gullis. As we have discussed, that bill led to the introduction of section 50 of the Police, Crime, Sentencing and Courts Act 2022.

I would need to reflect on what you said about a Holocaust memorial but I am happy to have discussions, and I could write to the committee on that point. I take your point exactly and I would like to reflect on it and come back to the committee.

You raise an important point. I have tried to make the bill’s scope as direct as possible, not only because of the time limitations that the Scottish Parliament has for a member’s bill, but to ensure that the bill is easily understood and has a direct aim and objective.

I am willing to discuss that issue at stage 2, because we have identified that places of worship are not included in the bill’s scope. Such issues could be ironed out at stage 2, and I am happy to have discussions with members about schools or sports clubs, because war memorials could be a part of such premises as well.

Thank you very much, convener. Good morning, everyone.

A war memorial is a centre point of many a community’s life. People gather round it on remembrance Sunday to pay their respects to and remember those who gave their lives in conflict so that our communities may enjoy peace and freedom, and to pay tribute to those who have served in wars. To many individuals and groups, particularly serving armed forces personnel, veterans and bereaved families, war memorials carry special meaning and significance. To some bereaved relatives and friends of people who have lost their lives in war but whose bodies were never recovered or repatriated, a war memorial is symbolic of a grave site.

Many veterans and armed forces groups have taken on the role of custodians of war memorials. They clean the stone, place flower beds and ensure that the surrounding area is kept tidy. I pay tribute to all groups that are involved in maintaining the upkeep of our war memorials.

Any attack on a war memorial, however large or small, is egregious, cruel, offensive and retraumatising for those who have lost loved ones in conflict or who have served or are serving themselves. In some cases, the vandalism or desecration of a war memorial would be categorised as a heritage crime. In practice, the offence is most likely to be charged and prosecuted under the statutory offence of vandalism or the common-law crime of malicious mischief.

Those matters are generally prosecuted in the justice of the peace and sheriff courts, and there are limits to the sentences that can be handed down and the levels of the fines that can be issued. Although those sentencing options are appropriate for most instances of vandalism, they do not allow courts to consider higher penalties, which would deter acts of desecration of war memorials and provide adequate redress for the distress caused to individuals and communities as a result of such acts.

The costs to local authorities of repairing and cleaning a defaced or damaged war memorial amount to thousands of pounds. That is due to the specialised stonemasonry involved in treating the stone and the skills that are required to restore them.

The question that I have for all committee members is this: do they believe that vandalism of a war memorial should be treated in exactly the same way as vandalism of a lamp post or a telephone box? In short, I do not believe that the current criminal law adequately takes account of the impact of the desecration of a war memorial on the people and communities for whom the memorial has significant and symbolic meaning.

That is why I consider that there should be a specific statutory offence of desecration of a war memorial, with options for courts to hand down higher penalties than those that are available at present, thereby creating a stronger deterrent. Ultimately, the sanctions would be for the courts to decide. However, I want to give them a range of options and for the law to more appropriately reflect the seriousness of this particular crime.

As committee members might be aware, the United Kingdom Parliament has already legislated in this area through the Police, Crime, Sentencing and Courts Act 2022. That followed a private member’s bill from the then MP Jonathan Gullis that would have created an offence of desecrating a war memorial.

I will turn to the provisions of my bill. It is a short, three-section bill with one substantive section. Section 1 would insert a new section 52A into the Criminal Law (Consolidation) (Scotland) Act 1995. Proposed new section 52A(1) would establish an offence of desecration of a war memorial. That would mean that any person who

“wilfully or recklessly destroys, damages or desecrates a war memorial”

is committing an offence unless they have a reasonable excuse. What constitutes a reasonable excuse will be determined by the courts on a case-by-case basis. However, an example might be someone who is working on a war memorial to clean or maintain it accidentally causing damage to it in the course of their work.

Proposed new section 52A(2) sets out what desecrating a war memorial means. It includes, but is not limited to,

“spitting, urinating or defecating upon, or otherwise defacing ... a war memorial”,

and it includes both temporary and permanent damage.

Proposed new section 52A(3) sets out the penalties for the new offence. A person, on summary conviction, could face up to 12 months in prison and/or a fine up to the statutory maximum—the maximum fine is £2,500 in a justice of the peace court and £10,000 in a sheriff court. On conviction on indictment, someone could face up to 10 years in prison and/or an unlimited fine.

Proposed new section 52A(4) provides definitions for the terms that are used in the bill. The definition of “war memorial” draws heavily on the definition of “memorial” in section 50 of the Police, Crime, Sentencing and Courts Act 2022. Subsection (4) also makes it clear that

“‘land’ does not include land over which access rights are not exercisable under section 6 of the Land Reform (Scotland) Act 2003”.

My intention is to exclude war memorials in private homes and gardens from the scope of the new offence.

Committee members will be aware that I have written to the committee about that matter. After the bill’s introduction, I became aware of a potential unintended consequence of that provision—namely, that it might exclude war memorials in the grounds of places of worship, which would be private land. As I indicated in my letter, should the bill proceed to stage 2, I plan to lodge an amendment to ensure that war memorials in places of worship or their grounds would be protected by the bill’s provisions, as well as those in any other places that would appropriately fall within the bill’s provisions.

As the bill relates to war memorials rather than memorials more generally, proposed new section 52A(4) makes it clear that

“something has a commemorative purpose in respect of armed conflict if at least one of”

the memorial’s

“purposes is to commemorate one or more individuals or animals, or a particular description or category of individuals or animals, who died in armed conflict”.

Sections 2 and 3 of the bill set out provisions on the bill’s commencement and short title.

I hope that that gives a clear overview of the bill and its underpinning policy development, and that it has been helpful to committee members. I look forward to taking questions and to the committee’s stage 1 scrutiny of the bill more generally.

That is an interesting point. If I may, I will touch on proposed new section 52A(4)(d) of the 1995 act, which provides that

“something has a commemorative purpose in respect of armed conflict if at least one of its purposes is to commemorate one or more individuals or animals”.

In the bill, I use the definitions that are used by the War Memorials Trust and the Imperial war museum, and they replicate the definition that was used in the private member’s bill that was introduced by Jonathan Gullis. As we have discussed, that bill led to the introduction of section 50 of the Police, Crime, Sentencing and Courts Act 2022.

I would need to reflect on what you said about a Holocaust memorial but I am happy to have discussions, and I could write to the committee on that point. I take your point exactly and I would like to reflect on it and come back to the committee.

That is correct, as it stands. The issue could be looked at further; I have tried to ensure that the bill is as clear and succinct as possible, and that is why I wrote to the committee about places of worship, for example. I am keen to hear from members if they have examples of the kind that you have rightly pointed out of other instances that we could look at in the scope of the bill.

In the financial memorandum to the bill, I do not estimate a large number of cases being prosecuted in the courts; my estimate is, I think, a maximum of 10 new cases per year. It is difficult to predict numbers, but if we are talking about numbers and hypotheticals, I would highlight evidence of comparable offences in England and Wales, which suggests that prosecutions would be rare. I hope that that provides you with a little bit of comfort.

The deterrent element in what I am setting out in the bill is strong, but what I am trying to do is to bring in what is already happening in England and Wales. This is not something brand new. Again, I am seeking to elevate the status of war memorials, which I know that we all agree are of significant importance to our communities, while also ensuring that the issue of emotional harm is also encompassed in the crime. Right now, it is a purely financial matter; when the courts go through this process, the outcome is usually about the cost of the damage to the war memorial. What I am trying to do in the bill is to ensure that the emotional impact is also covered in the court process and any potential prosecution.

However, I stress again that, from the information that I have about what is happening in England and Wales, the suggestion is that the prosecutions in themselves would be rare. This is all about showing people that desecration of a war memorial is wrong, that we do not accept it in society and that your actions could have severe consequences if you do decide to desecrate a war memorial.

I agree that we should look at veterans’ housing and other needs of veterans. That is of course a job for the Scottish Government, and I hope that, by raising the issue of war memorials, the Government will do more for our veterans. The issue should not be a political football. We should all be able to get behind and support our veterans without involving the politics.

I do not see the bill as performative. The idea was brought to me by a group who were devastated—and I mean devastated—that their war memorial was desecrated in the way that it was. That is not politicking. That is me taking on the concerns of a group of people who want the Parliament to do more for them.

That is why I am here today. I am not here for the politics. I am here to try to do some good for our communities and for the people who are genuinely impacted when war memorials are desecrated. There is no way that we can politicise that whatsoever.

I have tried to secure cross-party engagement on the bill and I have not tried to make it a party-political issue. I have met two cabinet secretaries to discuss the bill and whether there is any lever that we could use to find a way round the issues that we are experiencing.

The Dennistoun war memorial group, which lodged the petition on the issue, is desperate to see changes to the law, and that is what I am trying to achieve through that group’s hard work. Yes, my name might be on the bill, but this is not a bill for me. It is a bill for people who have contacted me and who want the Parliament to do something about the issue.

I do not have that information in front of me, but I would be happy to follow that up with the committee. However, the examples give you an insight into how many attacks can happen over a short period. That period was when we were beginning the research for the bill, but, of course, there have been attacks before and after the particular series that I have highlighted to the committee this morning.