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Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

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Section 18: Amendment of the Custodial Sentences and Weapons (Scotland) Act 2007

Background and proposals

200. Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007, which makes provision for the imprisonment and release of prisoners, has not yet been commenced. Section 18 of the Bill amends some of the statutory provisions in the 2007 Act relating to the release of prisoners from custody.

201. The 2007 Act makes provision for two different categories of sentence for an offence: a custody and community sentence (a sentence of imprisonment for a term of 15 days or more) and a custody-only sentence (a sentence of imprisonment for a term of less than 15 days). Where a custody and community sentence is imposed, the court must make an order specifying the custody part of the sentence. If the court intends to specify a custody part of more than one-half of the total sentence, it must state publicly its reasons for doing so.

202. The Scottish Government has expressed support for the offender management principles contained in the 2007 Act but believes that, “as enacted, the process would not work and would place an intolerable burden on the Scottish Prison Service and the Local Authorities that would undermine the core intentions of the legislation”148.

203. Section 18 repeals the custody-only provisions of the 2007 Act and replaces them with new measures to be known as the short-term custody and community sentence. The current custody and community sentence provisions, as set out in the 2007 Act, are retained.

204. The Bill provides for an order-making power, subject to affirmative resolution, to designate the length of sentence that will distinguish short-term custody and community sentences from (other) custody and community sentences. The Explanatory Notes and Policy Memorandum make reference, by way of example, to a threshold set at one year, while the Financial Memorandum considers the cost implications both of that and a two-year threshold.149 Short-term custody and community prisoners will be released on licence at the halfway point of their sentence, and the licence conditions must include the standard conditions in every case and supervision requirements in specified cases (prisoners released on compassionate grounds, those with extended sentences, sex offenders serving six months or more, and child offenders). Local authorities and the Scottish Government are required to establish joint arrangements for assessing the risks involved in the release of short-term custody and community prisoners on licence.

Evidence received

205. Mike Ewart, Chief Executive of the Scottish Prison Service, said that the 2007 Act, as enacted, would have increased the number of prisoners serving longer sentences, and he was concerned about “the inevitable impact … on an already overcrowded prison system”. In relation to the changes now proposed, Rona Sweeney, of the SPS, added that until the SPS knew what the threshold was to be and what the risk assessments would involve, it could not assess the likely impact on resources.150

206. The Association of Directors of Social Work (ADSW) said that “introducing the new custody and community licenses and extending formal supervision to all prisoners sentenced to more than 12 months will have massive implications for local authority criminal justice social work services”.151

207. The Sheriffs’ Association were critical of this provision, in particular the new provisions for early release on “curfew licence”—

“It hardly makes public sentencing decisions of the courts clear to the public, or enhances its confidence in the system, if the public has no idea what the time served will be and if the actual time served bears no resemblance to [the] sentence imposed in public by the court. It involves an unseen, unaccountable exercise of executive discretion in contrast to public sentencing in open court.”152

208. The Scottish Centre for Crime and Justice Research said it had “great reservations” about implementing the 2007 Act at all, and could only consider supporting it if the threshold was set at two years – as the Scottish Prisons Commission had recommended. It noted that (according to the Financial Memorandum) the annual estimated cost of implementing the 2007 Act, as amended by the Bill, was around £45 million with a one-year threshold, but only £32 million with a two-year threshold.153 The Centre’s concern was not simply “the enormous costs of implementation” but also the minimal returns expected, as it was aware of no research which would justify blanket pre-release risk assessment. To limit the ”potentially disastrous consequences” for criminal justice services, the SCCJR urged the Parliament to drop the provisions entirely or at least raise the threshold to two years, or to implement them only after “there has been an observable trend in reduced use of prison for short sentence prisoners.”154

209. According to Professor Fergus McNeill of the Scottish Consortium on Crime and Criminal Justice—

“The 2007 Act is a dreadful piece of legislation, which will have very negative consequences for the operation of the prison service and criminal justice social work. The money that it will cost to implement it would be far better spent on making community payback work … and not on a peculiarly muddled and ill-considered set of release reforms.”155

210. John Scott, speaking for the Consortium and for the Howard League on Penal Reform, said the provisions would make Scotland less safe because of the “waste of professional resources” that would be involved.156

211. In its written submission, ACPOS said that “the good work achieved to date in relation to the deterrence of knife crime would be lost if knife crime is not separated from this legislation”. Invited to clarify this, ACPOS said it was not seeking to argue that knife crime should be treated differently from other crimes, but was trying to highlight a possible unintended consequence of the proposal for automatic early release of short-term custody and community prisoners. This, it suggested, could be seen as inconsistent with recent initiatives to combat knife crime, which included sending a message that people caught carrying a knife could expect a custodial sentence.157

212. The Scottish Police Federation said that the provision for automatic early release of short-term custody and community prisoners “will not be readily understood or accepted”, since it did not take into account “the conduct and contrition of the offender whilst imprisoned”. The Federation wanted it to be a standard condition of any licence that the offender provide a home address at which he or she may be contacted by the police, and that the police should have the power to search the premises without a warrant.158

213. The Cabinet Secretary emphasised that he was building on the Custodial Sentences and Weapons (Scotland) Act 2007 and the recommendations of the Scottish Prisons Commission, thus replacing a system of “arbitrary unconditional automatic early release” with a system in which the sentence is explained publicly in court and where release, when it happens, is based on conditions. He went on—

“Letting people out early is not necessarily a bad thing if they show remorse and have been dealt with, but there is something wrong with a system in which people get out after the same period of time whether they show no remorse for what they have done or whether they have recanted and reformed and will be an exemplary citizen.”159

214. Philip Lamont of the Scottish Government explained that the cost of implementing the 2007 Act as amended by the Bill (estimated in the Financial Memorandum as £51.45 million) will be lower than implementing it unamended (estimated as £45.75 million if the “prescribed period” is set at one year, and £32.73 million if set at two years). These costs, according to Mr Lamont, would “require financial commitment at a future stage”, but since that would be covered by a future spending review, it would be “premature to pre-empt that outcome”.160

215. The Subordinate Legislation Committee (SLC) questioned the scope of the power being given to Scottish Ministers in section 18(2) to prescribe the threshold that distinguishes short-term custody and community sentences from custody and community sentences – in particular, why the delegated power required to be drawn so widely as to enable any period at all to be substituted for the period of 15 days in the existing legislation.161 In its response to the SLC, the Scottish Government said that it would consider this power again and whether the scope could be narrowed by setting minimum or maximum limits.

Committee conclusions

216. The Committee has found this a particularly difficult provision to assess, because of the complex interface between the current law, the regime that would be introduced by commencing relevant provisions of the 2007 Act as it was enacted, and the version of that Act that would result from the amendments made by the Bill. We are grateful to Scottish Government officials and to SPICe for providing the Committee with additional briefing on this section at a late stage in our Stage 1 consideration.

217. We understand the general intention of the 2007 Act to move away from a system of automatic and unconditional early release to a system that allows appropriate conditions to be imposed. However, we also recognise the serious concerns that have been raised about the complexity and cost involved in implementing that Act unamended, given the number of prisoners who would be subject to supervision and assessment requirements. We therefore agree that the Bill represents some improvement on the current law, as it will result in more prisoners being subject to statutory supervision on release and fewer to automatic unconditional early release, while avoiding the more onerous requirements of the 2007 Act. We understand that the intention is to set the threshold at sentences of one or two years’ duration, and we note the significant difference in the resource implications according to which of these is chosen. We also note the Subordinate Legislation Committee’s concerns about the unlimited nature of the power delegated by this provision, and welcome the Scottish Government’s commitment (in response to that Committee) to consider whether appropriate parameters might be specified in the Bill.

Section 24: Voluntary intoxication by alcohol – effect in sentencing

Background and evidence received

218. Under section 24, courts must not consider the fact that an offender is voluntarily intoxicated by alcohol at the time of the offence as a mitigating factor in sentencing. The Scottish Government considers that there “is a very strong link between alcohol and offending” but that intoxication can often be presented by the defence as “an excuse or reason for offending behaviour.”162

219. The provision was supported by Victim Support Scotland and the Joint Faiths Advisory Board on Criminal Justice.163 ACPOS also backed the provision, but suggested that it should be widened “to include all intoxicants, whether legitimate, prescribed or otherwise” – a suggestion backed by the Law Society of Scotland.164

220. However, both the Faculty of Advocates and the Sheriffs’ Association considered section 24 unnecessary, since it was already understood in common law that intoxication is not a mitigating factor. The Faculty also suggested that the provision as drafted could lead to “unforeseen consequences”, since it was not clear whether it applied to an alcoholic who could not control their consumption and so could be regarded as involuntarily intoxicated (and for whom a defence of diminished responsibility might be available under common law).165 The Sheriffs’ Association was concerned that the provision was inflexible, and would not allow intoxication to be a mitigating factor even where someone had, for example, had their drink “spiked with stronger liquor” before committing a breach of the peace. The Association suggested that the test should not just be whether someone had consumed alcohol voluntarily, but also whether they had done so “knowingly”.166

221. The Lord President questioned whether the “sentencer would be allowed to take into account background circumstances such as a personal tragedy”, for example, bereavement. He conceded that it might be possible to allow mitigation by reference to the tragedy itself rather than directly by reference to the intoxication, but felt the provision “gives rise to an ambiguity that ought to be addressed”.167

222. Responding to these points, the Lord Advocate acknowledged that most judges would not currently accept voluntary intoxication as a mitigating factor but said that solicitors continued to advance the argument, particularly in domestic abuse cases. She believed that—

“An important message would be sent out if we codified what is already known in our common law, which is that alcoholic intoxication is not a mitigating factor and that defendants who have imbibed alcohol will not have their sentences reduced because of that.”

223. She defended the decision to include only alcohol in the scope of the provision, on the basis that it featured far more frequently than drugs in cases that prosecutors dealt with, and was much more liable to be associated with violence. She also argued that the provision would not prevent the underlying cause of intoxication (such as bereavement or alcoholism) being treated as a mitigating factor even if the intoxication itself could not be.168

Committee conclusions

224. The Committee fully supports the principle that voluntary intoxication by alcohol should not be regarded as a mitigating factor in sentencing, but most members are less convinced of the case for codifying this principle in statute. The evidence suggests the principle is already well understood by sentencers, and there may be a risk that a statutory provision will confuse the legal position instead of clarifying it. This is partly because of uncertainty about the meaning of “voluntary” intoxication, and about the distinction between the intoxication itself and any underlying circumstances which might properly be regarded as mitigating. It could also be inferred from the fact that the provision mentions only alcohol in the context of what is not to be regarded as a mitigating factor, that the position in respect of other forms of intoxication must be intended to be different. It would be unfortunate if one of the consequences of this well-intentioned provision was to make it easier to advance an argument for mitigation in the context of voluntary intoxication by drugs. We would therefore be grateful for further explanation from the Scottish Government about the rationale for this provision and its response to these concerns.

PART 2 – CRIMINAL LAW

Sections 25-28: Serious organised crime

Policy objectives

225. In the Policy Memorandum, the Scottish Government explains that the provisions creating a series of new offences derive from recommendations by the Serious Organised Crime Taskforce. The objective is—

“to tackle those involved in serious organised crime to help ensure that Scotland is a safer and stronger place for hard working families to live and work in and to send a message to those involved in such activity that Scotland does not want their business.”169

226. The Bill proposes the creation of three new offences—

  • involvement in serious organised crime (section 25);

  • directing serious organised crime (section 27); and

  • failure to report serious organised crime (section 28).

227. There is also to be a statutory aggravation (section 26) “where an offence can be proved to have been connected with serious organised crime.”170

228. A number of witnesses raised concerns about the interaction or overlap with the existing common law, the definitions and other aspects of these offences.

Interaction with the common law

229. The Judges of the High Court of Justiciary observed in their written submission that “a person who agrees to become involved in serious organised crime under our existing law commits the offence of conspiracy to commit a crime.”171 They sought further explanation of what section 25 would achieve which is not already provided for by the existing common law.

230. The SCCJR also questioned this apparent overlap with the common law—

“It is not clear whether these new sections really add anything to existing offences such as conspiracy or incitement, or simply constitute a rather muddy overlap and ‘legislative creep’.”172

231. Responding to the point about overlap, the Solicitor General accepted that the new statutory provision would duplicate the common law to some extent – as was already the case with, for example, vandalism and malicious mischief – but argued that specific statutory provision could provide a useful framework for prosecutors and investigators seeking to address serious organised crime.173

232. However, the main argument advanced in support of the new provisions was that they would make it easier to secure a conviction than the existing law of conspiracy. According to Gordon Meldrum, Director General of the SCDEA—

“The current criminal law does not completely fail us – we can use the charge of conspiracy – but it is difficult to prove that such individuals have been involved in a specific offence, whereas the provisions in the Bill will create the specific offences of being involved in and directing serious organised crime.”

233. Similarly, the Lord Advocate accepted that “with creativity” the common law could be used to prosecute most of the behaviour aimed at by the new provisions, but section 25 in particular takes matters “a stage back” compared with the existing law on conspiracy—

“We are talking about the stage of preparation and the stage of perpetration. In many cases, we have evidence that does not quite show that the person was at the actual conspiracy stage; rather, it relates to their becoming involved in a conspiracy.”174

234. The Cabinet Secretary backed this up by saying—

“The Crown has made the point that proving conspiracy can be difficult. It is therefore appropriate that we have an additional statutory basis that allows us, while keeping the appropriate balance in the scales of justice, to ensure that it is not as difficult to convict someone of involvement in serious organised crime as it is to convict them of conspiracy, and to send a message that society will take serious organised crime extremely seriously.”175

235. Later in the same evidence session, he added that—

“The job of our Government is to ensure that the appropriate legislative framework is put in place to allow the police and the prosecution service to do their job. They have told us that they do not believe that the current law of conspiracy is appropriate.”176

Definition of serious organised crime

236. Section 25 of the Bill defines “serious organised crime” as—

“crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit a serious offence or a series of serious offences”

and then defines “serious offence” as

“an indictable offence—

(a) committed with the intention of securing a material benefit for any person, or

(b) which is an act of serious violence committed with the intention of securing such a benefit in the future.177

237. The Committee notes that the definition of “serious offence” covers all indictable offences aimed at securing a material benefit (for instance any common law theft or fraud) rather than being restricted to offences involving serious violence, drugs trafficking and firearms, for example. The Committee also notes that the definition of “organised” as involving two or more people conspiring together would cover much ordinary criminal activity.

238. The Scottish Crime and Drug Enforcement Agency (SCDEA), the body responsible for tackling serious organised crime in Scotland, welcomed the new offences but expressed a number of concerns about the definitions and the difficulties of securing evidence in order to prove the offences.178 The Agency said that it would be preferable if the term “serious offence” could be applied to any crime capable of being indicted which would enable instances of minor crime, motivated by serious organised crime, to be dealt with more effectively.”179

239. The Scottish Centre for Crime and Justice Research (SCCJR) was one of a number of witnesses concerned about the potential breadth of the definition of serious organised crime. It observed that the definition “sets a very low threshold for what might constitute serious organised crime” and that “much of what would be captured by the definition given here is ‘crime that is comparatively organised’ not serious organised crime.”180

240. The SCCJR also noted that there is no standard UK definition of organised crime, although there are various informal working definitions in use. It argued, therefore, that—

“Whilst such definitions may be appropriate in the context of policing, it is not appropriate for a statutory definition. Given the lack of a standard definition it seems inadvisable to frame legislation that introduces one that is so over-inclusive.”181

241. In their written submission, the Judges of the High Court of Justiciary said that these provisions risked including a wider range of offenders than is appropriate—

“If this is correct, we doubt that it is a principled approach in the criminal law simply to leave it to the discretion of the prosecuting authorities when to invoke provisions which are themselves unduly wide in their scope.”182

242. Ian Duguid QC, representing the Faculty of Advocates, also questioned the scope of the definition—

“If the Bill is trying to pursue persons who have a remote connection with serious organised crime, that is a perfectly laudable objective. That aspect of the provisions is well founded; the issue is whether enough care has been taken in the drafting and whether the Bill will create more difficulties than it is trying to solve. Who is envisaged to be ‘involved in serious organised crime’? Is it every person across the board?”183

243. Using an extreme example to illustrate the same point, the Sheriffs’ Association pointed out that “if two people agree to steal a meat pie from a shop to give it to a starving beggar, they commit the offence of being involved in serious organised crime.”184

244. However, in oral evidence, the Lord Advocate refuted the suggestion that such a crime would be prosecuted on indictment—

“Of course, if two people conspire to steal a meat pie, I can – theoretically – indict them for that. Currently, that is under the common law. However, I would not do so, because if I did, I would receive criticism – and not delicate criticism – from the judiciary and others. I would be seen as having lost all common sense.”185

245. The Cabinet Secretary for Justice re-emphasised the point—

“The Crown will not libel such matters on a whim or fancy. Indeed, if any such matter were so libelled, I would expect our judiciary to treat the charge with the contempt that it deserved by dismissing it fairly summarily.”186

246. The Lord Advocate explained to the Committee why she considered that a wide definition of serious organised crime was appropriate—

“With the jurisprudence of the European Convention on Human Rights, particularly Article 7, there is a drive towards greater certainty about what constitutes a crime … The benefit of having a wider definition is that it gives us the capacity to indict immediately, without having to wait for legislation, when an innovative new business is created that should clearly be struck at in the context of serious organised crime, as opposed to the simple commission of fraud. Even emergency legislation can miss that opportunity.”187

247. Chief Constable Stephen House, representing ACPOS, also argued against tightening the definition—

“If we tighten the definition too much we will miss issues and new crimes. Criminals might even exploit the definition to ensure that activity does not fall within the definition of ‘serious organised crime’ and therefore cannot attract the powers that we are talking about. Definitions have been exploited in that way in the past.”188

248. The Cabinet Secretary said he was willing to consider narrowing down the scope of the provision to concentrate more clearly on serious organised crime, but pointed out that “the fail-safe of judicial interpretation” should ensure that the provisions are not used inappropriately.189

Serious violence

249. In addition to these concerns that the definitions are too widely drawn, there was also a suggestion that including the term “serious violence” in the definition of serious offence risked being too restrictive. According to the Scottish Crime and Drugs Enforcement Agency (SCDEA)—

“It is unclear what would constitute an act of serious violence … those involved in organised crime may achieve their objectives through fear and intimidation without necessarily resorting to serious violence, albeit it is acknowledged that violence may well occur. The use of the term appears to be unnecessarily restrictive and should be widened to include any behaviour which is used to further the activity of organised crime.”190

250. Expanding on the point in oral evidence, Gordon Meldrum argued—

“In witness statements or through intelligence, we pick up on the fact that serious and organised crime groups operate through a culture of fear, intimidation and threats. On occasions, there might not be a physical act of violence but there will be threats, intimidation and all sorts of other non-violent abuse. That is how those groups manipulate people from all walks of life in order to get their own way.”191

251. In response, the Lord Advocate explained that—

“Threats and intimidation are indictable offences; the outcome depends on the situation in which they take place. I could indict a threat or extortion in the High Court—indeed, we have done so.”192

Offences aggravated by connection with serious organised crime

252. In the Policy Memorandum, the Scottish Government sets out its view that—

“criminal offences committed with the underlying purpose or motivation of committing or conspiring to commit serious organised crime are more serious on account of the context in which they take place and the motivation of the offender.”193

253. Accordingly, under the Bill, where a criminal offence has been committed with the underlying purpose or motivation of committing or conspiring to commit serious organised crime, this could be treated as an aggravating factor and the court would have the discretion to adjust the sentence accordingly.194

254. The Sheriffs’ Association, however, questioned this reasoning—

“It is not always appreciated that courts can take aggravating circumstances into account in sentencing without there having to be a statutory aggravation as in [section] 26. There may be a desire for statutory aggravations for statistical purposes, but they are not necessary.”195

255. Nevertheless, the Lord Advocate said that she believed the new provisions would be “very useful”—

“I hope that, in addition to dealing with the crime itself, the courts will clearly show and reflect the seriousness with which engagement in serious organised crime, intimidation, the exploitation of human beings for human trafficking or sexual purposes, or engagement in drug trafficking are treated in Scotland by reference to the aggravation and by having the particular offences available.”196

256. The Scottish Centre for Crime and Justice Research (SCCJR) accepted that this may be an appropriate aggravation to recognise in law but considered that the broad definition of serious organised crime meant that the aggravation could be “too easily applied or proved”. It also questioned why, under section 26(4), the normal requirement for corroborating evidence is disapplied, so that evidence from a single source is sufficient to prove aggravation by a connection with serious organised crime—

“Given the potential severity of the penalty it is not clear why this requirement is being relaxed, or that the relaxation is justified.”197

Failure to report serious organised crime

257. The Policy Memorandum explains the rationale for section 28 of the Bill as follows—

“Serious Organised Crime groups rely on the assistance of professional associates and family members. The assistance of professional occupations such as lawyers and accountants is required when hiding the profits of criminal activity or converting illegitimate gains into legitimate assets. We want to ensure that those who have knowledge of an individual’s involvement in a serious organised crime network, whether in a professional or private capacity, should be under a duty to report it.”198

258. This offence will carry a maximum penalty of 5 years imprisonment, an unlimited fine or both for conviction on indictment and 12 months imprisonment, a fine not exceeding the statutory maximum or both for summary conviction.199

259. In oral evidence, Gordon Meldrum, Director of the SCDEA, explained that the provision was designed to catch individuals whom he described as consultants and facilitators—

“They oil the wheels of organised crime but do not necessarily get close to the front-end criminality – they might be involved in the banking profession, the legal profession, the accounting profession, the haulage industry and so on. … Often, they have a knowledge of the business of serious organised crime, if not necessarily the daily transaction of the criminality. The fact that they fail to report that knowledge often inhibits us. Having an offence around failure to report knowledge of serious and organised crime would be helpful with regard to those people.”200

260. The Solicitor General gave the example of an estate agent who factors a number of flats for a client and then notices they are paying huge monthly amounts for electricity: “That would tip off anyone with any semblance of common sense … that the flats were being used as cannabis farms”. Such a person might be tempted not to report their suspicions because of the large fees they are getting – and while this would not be covered by existing money-laundering legislation, the Bill would, he argued, provide a useful tool to address the situation.201

261. But the Sheriffs’ Association expressed concern about the terms of the offence—

“Having regard to the wide definition, the offence of failure to report serious organised crime under [section] 28 is a frightening prospect. It is of some concern that a person may unwittingly fall foul of this provision.”202

262. The Judges of the High Court of Justiciary also expressed “considerable concerns as to how these provisions will work”, referring specifically to—

  • the level of suspicion needed to render criminal any failure to disclose such a suspicion;

  • the implications for this offence of the width of the definitions of “serious organised crime” and “serious offence” in section 25; and

  • the breadth and lack of definition of some of the concepts used in defining this offence, such as “material benefit” in subsection (2) and “reasonable excuse” in subsection (4).203

263. Sir Gerald Gordon expressed similar reservations—

“As it stands it could require children to report their parents just because the latter pay their school fees. The whole idea of making it an offence not to report a crime has its problems, but this section (which does not define ‘material benefit’) goes too far. It could perhaps be cured, and could certainly be improved, by some limitation on ‘material benefit’. If it is indeed intended only to apply to a direct share in the proceeds of the crime, such an amendment might help to avoid the apparent creation of a society which encourages denunciation. As it stands it has totalitarian overtones.”204

264. On a similar theme, the Law Society of Scotland raised the issue of compatibility with the European Convention on Human Rights. It drew to the Committee’s attention a German case where the European court held that there had been a breach of Article 8 (respect for privacy and family life)—

“In this case, which involved the unlawful search of a lawyer’s office in Germany to find documents revealing the identity of a supposed associate of the lawyer, the court held that the search was a violation of Article 8 and commented that the notion of “private life” should not be taken to exclude activities of a professional or business nature. The Society questions whether the provisions of section 28 comply with Article 8.”205

265. In oral evidence, Alan McCreadie of the Law Society concluded—

“Perhaps section 28 is too widely drafted and has unintended consequences. It must be properly considered who the provision is intended to capture.”206

266. Other witnesses raised more specific concerns. Her Majesty’s Revenue and Customs (HMRC) argued that, since the offence was defined in terms of failing to report knowledge or suspicion to “a constable” it would be appropriate for this to cover relevant officers of HMRC—

“We think it should, as the obvious route for reporting tax-related offending in particular would be to HMRC directly. It would seem to us to be wrong in such cases for a person to be criminalised for reporting to HMRC instead of the police.”207

267. The SCDEA expressed concern that professional legal advisers employed by an organised crime group could escape prosecution under the provisions of section 28, since “by virtue of the defence afforded under subsections (4) and/or (5) a legal adviser could continuously evade prosecution.”208

268. However, according to the Lord Advocate, the protection provided for legal privilege “should not be used as a cover by solicitors or other professionals who would facilitate crime”. For her, the new offence was important—

“because a lot of organised crime can take place only with the acquiescence of certain professionals, be they estate agents, solicitors or others, who allow activity to take place through what are ostensibly legal and legitimate activities. We must ensure that we tackle that route. … I am not concerned that the provision is too widely drawn, but if that is seen to be the case, we can consider whether amendments might provide reassurance.”209

269. Chief Constable Stephen House, ACPOS, argued that the new offence was necessary—

“simply because we have to get at serious and organised crime in any way that we can. The people who choose to become involved in it make a conscious choice. Therefore, they are ready for it and are getting into a defendable position. … In section 28, we are saying that, if such people have suspicions or knowledge, they need to step forward and, if they do not, they commit an offence.”210

270. In a joint supplementary submission, SCDEA and ACPOS gave several examples of how the new provisions could make a difference to the prosecution of serious organised crime, including the following—

“During a recent investigation it became apparent that a number of persons were identified as having knowledge of the business of a serious organised crime group. There was however insufficient evidence to charge them with offences in connection with the primary activity of the group. Had the provisions of section 28 been available then they most certainly would have been charged under those provisions. As it was, whilst a number were charged with other offences, some of those involved could not be charged and therefore evaded prosecution.”211

271. The Cabinet Secretary for Justice acknowledged that the offence of failure to report serious organised crime was targeted widely, but said it was “about allowing discretion and judgment to be used by the police, the SCDEA, HMRC and, ultimately, the Crown and the courts”, and was “a backstop, to an extent”. He went on—

“It is not so much the person whom we might ask, ‘Where did you think the money was coming from?’ whom we are targeting; we are targeting the people whom we know to be working as the scribes or authors of inventive schemes to take money that has been bled from our community to make themselves ever richer.”212

Committee conclusions

272. We strongly support the underlying intention of these sections of the Bill to provide additional tools for the police and the courts to tackle those involved in serious organised crime. We are less certain, however, that the Bill gets the detail right.

273. While there was contradictory evidence and most members are not entirely clear on what sections 25 and 27 add to the existing common law on conspiracy and incitement, and while we have some concern that the key terms of “involvement” and “direction” are insufficiently clear, on balance we support the creation of these new offences. We also support the new aggravation provided for in section 26, although we are not wholly convinced of the case for removing the normal requirement for corroborating evidence. We would therefore welcome a clearer justification for this element of the provision from Ministers.

274. We have considered carefully the evidence we have received about the definitions underpinning these new offences, namely the definitions of “serious organised crime” and “serious offence”. The main concern is that they are too widely drawn, and in this context we note that there is some dispute about whether offences need to be widely drawn in statute to ensure that the courts can apply them as intended. The Lord Advocate advanced this view, suggesting that ECHR case-law has made it increasingly difficult for the courts to “expand” on a narrowly-drawn statutory definition in deciding what constitutes an offence. However, the Committee’s criminal justice adviser (Professor Peter Duff) has suggested that the European Court of Human Rights extends a considerable “margin of appreciation” to domestic courts, and that if the serious organised crime offences were more tightly defined, the Court “would grant the Scottish courts considerable leeway in interpreting the legislation creatively to extend to all the types of mischief it was intended to cover”. Accordingly, we invite the Scottish Government to re-examine the extent to which it may be possible to tighten the definitions in the light of the evidence we have received.

275. Of the provisions on serious organised crime, the one that has given us most difficulty is the section 28 offence of failure to report serious organised crime. It would clearly aid the fight against serious organised crime if people who come into contact with it, even quite innocently or inadvertently, were more prepared to report their suspicions to the police – but it is much less clear that a criminal sanction for not doing so is a fair or indeed effective way of encouraging this. People may be reluctant to report suspicions to the police for quite understandable reasons.

276. We also think more allowance should be made for the nature of a person’s role if they are to be held liable for not reporting suspicions arising from information gained in the course of their business or employment. For example, if unusually large amounts of cash are banked by a small business and this prompts suspicion among bank staff, it is one thing to hold liable for not reporting this a senior manager or trained professional, but another to hold liable a junior cashier. Similar concerns may arise about information gained through a “close personal relationships” from which a “material benefit” is derived, as this could apply to the teenage child of a gangster who has begun to understand where the family income comes from.

277. While we do not agree with Sir Gerald Gordon that section 28 has “totalitarian overtones”, we do agree with his view that the provision could certainly be improved. For the time being, we invite the Scottish Government either to provide a better justification for this provision, or to bring forward amendments that will address the concerns raised.

Section 34: Extreme pornography

278. Section 34 of the Bill inserts into the Civic Government (Scotland) Act 1982 new provisions to criminalise the possession of obscene pornographic images which explicitly and realistically depict various “extreme acts”.

279. The policy objective is to “help ensure the public are protected from exposure to extreme pornography that depicts horrific images of violence”.213 The maximum penalty for the new offence will be three years imprisonment or a fine or both.214

280. The Policy Memorandum explains that it is already illegal to publish, sell or distribute the obscene material that would be covered by this new offence. Section 34(1) increases the maximum penalty for these activities from three to five years “to emphasise the seriousness attached to distribution of this type of material”.215

281. The new offence is similar to that in section 63 of the Criminal Justice and Immigration Act 2008, which applies in the rest of the UK. The proposed Scottish offence goes further, however, as—

“it will cover all obscene pornographic images which realistically depict rape or other non-consensual penetrative sexual activity, whether violent or otherwise (whereas the English offence only covers forms of violent rape).”216

282. Provisions to establish a category of excluded images and defences to a charge of possession of an extreme pornographic image are also included within section 34.

283. Most of those who commented on this section supported the creation of an offence of possessing extreme pornography, although some argued that there is no evidence that pornography increases sexual offending and opposed these provisions as an unjustifiable intrusion into the private lives of citizens.217

Definition of extreme pornography

284. A number of concerns were expressed about the definition of the new offence, either arguing that it is too wide or that it should be extended in various directions.

285. In his written submission, James Chalmers of Edinburgh University School of Law noted that the provisions in the Bill go significantly beyond the definition canvassed in a consultation exercise carried out by the Scottish Executive and Home Office in 2005 and subsequently implemented for the rest of the UK in the Criminal Justice and Immigration Act 2008.218 He noted that the Policy Memorandum says only that this definition was “insufficiently broad” without giving any further explanation—

“The Policy Memorandum observes that the English legislation does not cover rape per se, but this is hardly an accident of drafting: there was a clear desire to limit the legislation to extremely serious cases.”219

286. Mr Chalmers argued that the Scottish Government had “at no stage explained its rationale for criminalisingsuch possession. It can hardly be the simple fact that the activity depicted is criminal: murder is regularly depicted on terrestrial television without objection.”220

287. On the other hand, several respondents expressly supported the use of the wider definition in the Bill.221

288. Ian Duguid QC, representing the Faculty of Advocates, expressed strong support for an offence of possessing extreme adult pornography—

“It is only proper that the law deal with such images, including computer-generated images. The difficulty that I can envisage concerns policing the internet, but I have no difficulty with the full weight of the law being applied when a fruitful investigation is undertaken that reveals images of that type. If the law requires to be amended as is proposed so that it reflects the public’s attitude, that is perfectly reasonable as far as I am concerned.”222

289. In its written submission, the Crown Office explained how it would approach enforcement of the new offence—

“Although the offence is broad in its terms and allows for a wide latitude of discretion in determining what amounts to a prohibited image, careful consideration will be given, if it is enacted, to the development of clear guidance for police and prosecutors to ensure that it is enforced consistently and fairly.”223

290. In oral evidence, the Lord Advocate was asked whether the new offence was drawn widely enough. She commented—

“We already have the Civic Government (Scotland) Act 1982, which includes the wider definition of, or the fundamental platform of, obscenity. … The difficulty in respect of pornography is that we come up against the ECHR rights of freedom of expression and the article 8 rights to privacy in the context of sexual activity. It is important to derive some certainty in that area in order to show a balance – to show not only that what is being done in engaging article 8 is proportionate, but that it has a degree of certainty in that area of criminality.”224

Definition of obscene

291. Several respondents questioned whether the word obscene should form part of the definition. For example, the Women’s Support Project argued that—

“the inclusion of ‘obscene’ in the criteria for extreme pornography dilutes the focus of the new proposals, retains a ‘moral’ judgement and suggests that the intention behind the proposals is to prevent depravity or corruption. The WSP believes that the Scottish Government should not rely on the 1982 Act for a definition of obscenity but develop a definition based on an understanding of the broad cultural harm to which pornography contributes.”225

292. Other respondents also argued for a definition focused on “cultural harm”.226 Professor Clare McGlynn and Dr Erika Rackley, Durham Law School, offered a justification for this approach—

“Legislative action against extreme pornography is justified because of the ‘cultural harm’ of such material, by which we mean that the existence and use of extreme pornography contributes to a society which fails to take sexual violence against women seriously.”

293. Professor McGlynn and Dr Rackley urged the Committee to reconsider the use of the language and concept of “obscenity”, partly because “the definition of ‘obscene’ is vague and opaque” and leads to “a great level of discretion and lack of clarity”. In addition, the term—

“has been used to cover the depiction of activities which are not in themselves unlawful, yet may be viewed by some as morally wrong or disgusting (such as images of coprophilia). The criminal law should not be used to proscribe the depiction or viewing of acts which are not unlawful in themselves to carry out.”

294. However, they also argued that the use of the term “obscene” alone was preferable to the “exceptionally vague and undefined reference in the English provisions to material which is ‘grossly offensive, disgusting or otherwise of an obscene character’ [section 63(6) of the Criminal Justice and Immigration Act 2008]”.227

295. For ACPOS, the problem was that while “pornographic” and “extreme” were defined in the Bill, “obscene” was not, and it suggested it could be defined as “abhorrent to morality or virtue; specifically designed and intended to incite lust or depravity”.228

296. The Committee notes the evidence presented regarding the inclusion of the term “obscene” as part of the definition of extreme pornography. The Committee understands that the Civic Government (Scotland) Act 1982 already includes reference to obscene material but notes that the word obscene is not defined in that Act.

Definition of extreme image

297. The Bill defines an image as extreme “if it depicts, in an explicit and realistic way any of the following—

(a) an act which takes or threatens a person’s life,

(b) an act which results, or is likely to result, in a person’s severe injury,

(c) rape or other non-consensual penetrative sexual activity,

(d) sexual activity involving (directly or indirectly) a human corpse,

(e) an act, which involves sexual activity between a person and an animal (or the carcase of an animal).”229

298. Some respondents, including the Zero Tolerance Charitable Trust and the Violence Against Women Strategy Multi-Agency Working Group, suggested that the definition of an extreme image set out at (b) above should be changed from an act which is “likely” to result in severe injury to “threatens” to cause this result. They argued that this would increase the scope to cover acts of rape which could be said to threaten severe injury, but are not likely actually to result in severe injury.230

299. The SCDEA suggested there might be “practical difficulties” with the definition of an extreme image—

“The use of the terminology ‘depicts, in an explicit and realistic way’ would seem to include all images where such acts are depicted but are subsequently shown to have been staged or acted out. For example, a realistic depiction of a rape or sexual murder, which is undoubtedly pornographic but where the ‘victim’ is shown to have suffered no harm and to have been a willing participant in actions depicted, would appear to be included in the definition.”231

300. Subsequently, in a joint submission with SCDEA, ACPOS suggested that a better approach to defining extreme image could be to replace the list of specified acts with a more general definition that would capture “all images of illegal acts committed with a sexual motivation (subject to the exclusions currently outlined within the Bill)”.232

Computer-generated images

301. Several respondents suggested that non-photographic representations of extreme acts should be covered, in particular computer generated images of the sort found in virtual reality games.233 Rape Crisis Scotland explained the basis for its concern about this issue—

“We believe that it is a missed opportunity to not include non-photographic representations of extreme acts in the Bill. This means that the provision in the Bill will not cover depictions of extreme pornography on virtual worlds such as Second Life or games online or other digital platforms, where the pornography is violent, extreme and interactive, but where the images are not photographic. Similarly, we would like to emphasis that there is still a need to enact similar legislation in relation to child pornography, as proposed by the Scottish Executive in early 2007.”234

302. Tom Roberts, representing Children 1st, commented on the effect such images may have on children—

“Given that computer-generated images can be used to groom children by suggesting to them that something that happens on their computer must be acceptable, the distribution of such images can cause harm or distress to children and can be just as bad as the other type of material that circulates on the internet. We need to ensure that our laws can deal with that appropriately.”235

303. ACPOS considered this issue in a supplementary written submission—

“The use of the phrase ‘in an explicit and realistic way’is worthy of debate when considering the definition of ‘extreme’ in respect of cartoon images, etc. It may be argued that cartoon (or other) images with gross distortions are not ‘realistic’. However these may well portray extreme pornographic images which are clearly understood.”236

304. ACPOS suggested that it may be more appropriate to address the action rather than the realistic portrayal of the image, for example by referring to any image that “depicts in an explicit manner a representation of an event of a sexual and pornographic nature”.237

305. But for James Chalmers, it was “clear” that section 34 already covers computer generated images—

“The only limiting factor is that an image must be ‘realistic’ to fall within the scope of the provisions. The Bill is not limited to particular types of image. In this respect, it is rather wider than the offence of possessing indecent photographs of children, which is restricted to ‘photographs or pseudo-photographs’, including photographs comprised in films. A ‘pseudo-photograph’ is ‘an image, whether produced by computer-graphics or otherwise howsoever, which appears to be a photograph’ [Civic Government (Scotland) Act 1982, sections 52 and 52A].”238

Incest

306. A number of organisations argued in favour of extending the definition of “extreme pornography” to cover incest.239 Rape Crisis Scotland argued that the provisions in the Bill would not necessarily cover pornography which glorifies incest, unless it is clear that the woman depicted is not old enough to consent—

“We believe serious consideration must be given to extending the definition of extreme to include depictions of incest (which is in itself an illegal activity) to ensure these types of materials are covered by the legislation.”240

Possession

307. Various questions about the definition of “possession” were raised by respondents to the Committee’s call for evidence.

308. The SCCJR argued that for reasons of clarity, it would be better if the provisions were to clearly define the meaning of possession—

“Since, as is acknowledged in the Policy Memorandum, this is aimed at material produced and distributed in electronic form, it is important to be specific about what amounts to possession in these circumstances. Viewing an image online means that it is downloaded and (usually) stored on the hard drive of the computer of the viewer. Does possession extend to all images cached on the computer hard-drive?”241

309. The National Gender-based Violence Programme Team, part of the Healthcare, Strategy and Policy Directorate, Scottish Government, submitted that there was a need to clarify whether possession would cover repeated viewings of extreme pornography, whether or not the material was actually downloaded.242

310. According to Professor McGlynn and Dr Rackley—

“The concept of possession is key to this offence. It is not defined in the Bill (nor in the English provisions). This is a serious omission. We suggest the legislation include a definition of possession to clarify exactly what will be covered.”243

311. However, ACPOS and the SCDEA said they were “content that existing legislation and case law would provide sufficient definition around the term ‘possession’.”244

Excluded images and defences

312. Under the proposed section 51B of the 1982 Act, images that would otherwise qualify as extreme pornography are excluded from the scope of the offence (under proposed section 51A) if they are from a “classified work” – which is defined as a video work which has been classified by a “designated authority” such as the British Board of Film Classification (BBFC). In addition, section 51C provides a series of defences to a charge of possession of an extreme pornographic image, including a defence for those who directly participated in the act depicted.

313. The Consenting Adult Action Network, which opposes making possession of extreme pornography a criminal offence, questioned whether the provision for “excluded images” was appropriate—

“If the material in question causes demonstrable harm, then it is totally utterly irresponsible on the part of government to insert the BBFC exemption – and suggests a bowing to commercial (film) pressure in preference to a genuine desire to protect members of society. Further, would not most BBFC material fail the ‘realistic’ or ‘pornographic’ test once it is known that the material is from a film? There is no reason for this section to be in there.”245

314. The Judges of the High Court of Justiciary also questioned the provisions regarding excluded images and the defence of direct participation—

“We question the policy of allowing a designated body to exclude from the scope of the criminal law an image which meets the definition of extreme pornographic image. Why should such a body, in the context of criminal law, decide that such material, the possession of which would otherwise be criminal, is acceptable as a part of or as being in its entirety a work of art?

“We are also at a loss to understand the defence in proposed section 51C of the 1982 Act protecting the persons who directly participated in the act depicted. If the depiction is unacceptable as amounting to extreme pornography, we do not see why the participant who retains the material for private use should have the defences available in subsection (4) of section 51C when other possessors, for good policy reasons, do not.”246

Committee conclusions

315. The Committee shares the Scottish Government’s aim to protect the public from extreme pornography, but has noted a range of concerns raised in evidence about the parameters of the new offence proposed. There are various points on which we would seek further clarification from the Scottish Government. The first is why the definition of “extreme image” includes a much broader reference to depictions of rape than was suggested in consultation and is provided for in the equivalent England and Wales legislation. Secondly, we would be grateful for further explanation about why that definition refers to “realistic” depictions of sexual acts, and how that relates to cartoons or other images that have been distorted or have a fantasy element. Thirdly, we would seek clarification on the rationale for using the term “obscene” as part of the definition of extreme pornography, when that term is itself undefined in the Bill, and whether any consideration was given to alternative definitions in terms of the cultural harm that pornography can cause. Finally, we would be grateful for clarification of what is meant by “possession” of extreme pornography, and whether, in the absence of any definition in the Bill, what understanding of that term would be relied on by the courts (particularly where images come into someone’s possession through electronic transmission).

316. The Committee accepts the rationale for excluding from the offence of possessing extreme pornography images that form all or part of a classified work, such as a film granted a certificate by the British Board of Film Classification. However, we are uncertain about some of the practical implications, for example whether it offers protection from prosecution to the film-maker who is in possession of a film that the BBFC has not yet been able to consider for certification.

317. We are satisfied with the defences that are provided in inserted section 51C. In particular, while we note the concerns raised in evidence, we agree that the Bill is right to distinguish between the possession of an image by those who participated in the sexual activity depicted and the onward transmission of that image to third parties.

Section 35: People Trafficking

Background

318. Section 22 of the Criminal Justice (Scotland) Act 2003 makes it an offence to engage in trafficking for the purposes of prostitution. UK-wide provisions making it an offence to engage in trafficking for purposes of exploitation (including slavery, forced labour and organ harvesting) are contained in sections 4 and 5 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Amendments to the 2004 Act to clarify the application of those offences were made by the UK Borders Act 2007, but these amendments only apply in England, Wales and Northern Ireland.

319. Section 35 of the Bill is intended to clarify Scots law and ensure consistency across the UK. Accordingly, it amends section 22 of the 2003 Act to make clear that the existing offence of trafficking for the purposes of prostitution applies whether the trafficking is into, within or out of the UK, and whether it is directed from inside the UK or from outside the UK, and it specifies in which sheriff court districts an offender may be proceeded against. The section also makes similar changes to the 2004 Act to ensure consistency across the UK.

Evidence received

320. ACPOS was supportive of the proposed changes but sought clarification that any new offences created would apply to those who traffic from within the UK and would not be limited to those who orchestrate trafficking from outwith the UK. It also suggested that the definition of facilitation should include related activity such as the procurement of travel documents, transport and offers of work and accommodation. Finally, ACPOS argued that “it is vital that further consideration should be given to extending the legislation to include labour exploitation, sexual exploitation and domestic servitude rather than being exclusive to prostitution”.247

321. Care for Scotland also welcomed the proposals but said it missed an opportunity and that “until the root causes of sex trafficking and other forms of sexual exploitation through prostitution are sufficiently addressed, attempts to diminish the phenomenon will be limited.” It warned that, unless Scottish legislation in this area kept pace with that in the rest of the UK, the numbers of people trafficked into Scotland for the purpose of sexual exploitation would continue to grow.248

Committee conclusions

322. The Committee has no difficulties with this provision as far as it goes, but it would be useful to get a clearer indication of what else the Scottish Government is doing to tackle trafficking issues, particularly in view of the absence so far of convictions for sexual exploitation under the 2003 Act (notwithstanding suggestions that Glasgow has the highest number of trafficked persons outside London).249 We are sympathetic to the concerns expressed by ACPOS that the legislation should be sufficiently broad to cover all forms of trafficking. We are particularly concerned that the problem may be exacerbated during the Commonwealth Games in 2014. We would therefore welcome assurances from the Cabinet Secretary that the changes made by the Bill will contribute meaningfully to addressing this problem.

part 3 – criminal procedure

Section 38: Prosecution of children

Background

323. Section 38 of the Bill amends the Criminal Procedure (Scotland) Act 1995 so as to prohibit the prosecution of children under the age of 12 years in the criminal courts. As a result, whatever the offence committed, a child under the age of 12 will in future only be able to be dealt with by the children’s hearing system.250

324. The UN Committee on the Rights of the Child carried out a periodic examination of the UK in September 2008 to see how well it was protecting children’s human rights. It made more than 100 concluding observations (recommendations) about where the UK must do more to put the UN Convention on the Rights of the Child (UNCRC) fully into practice. Among its recommendations on youth justice, the UN Committee said that the age of criminal responsibility (currently eight in Scotland) must be made higher.251

325. Article 40(3)(a) of the UNCRC requires States to establish “a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”.252 The UN Committee considers it not to be internationally acceptable for a minimum age of criminal responsibility to be set below the age of 12 years.253

326. In December 2008, the Scottish Government published a consultation on its response to the UN Committee’s concluding observations. This included specific reference to the age of criminal responsibility and invited responses on this issue.254

327. In October 2000, the Scottish Law Commission (“the SLC”) was asked by the Scottish Ministers to look at the rules on the age of criminal responsibility, including the rule (contained in section 41 of the 1995 Act) which presumes that a child under the age of eight cannot be guilty of any offence. In its report, published in January 2002, the SLC made the following principal recommendations—

“1. Any rule (whether at common law or statutory) on the age at which children cannot be found guilty of an offence should be abolished.

“2. The existing statutory provisions which place restrictions on the prosecution of children under 16 should be retained subject to an amendment to the effect that a child under the age of 12 cannot be prosecuted.

“3. It should be competent to refer a child to a children’s hearing under section 52(2)(i) of the Children (Scotland) Act 1995 notwithstanding that because of his age the child cannot be prosecuted for the offence.

“4. None of the provisions in the Act shall apply in respect of the conduct of a child committed prior to the date on which the Act comes into force or to any prosecution commenced prior to that date.”255

328. The Policy Memorandum claims that the Bill implements the main recommendations of the SLC report by introducing a prohibition on the prosecution of children under 12 in the criminal courts. However, “the SLC’s recommendation to abolish the existing conclusive presumption in relation to under 8s is not taken forward”; nor is the current age-limit increased.256

329. The result is that, under the Bill, children aged between eight and 11 will continue to be treated as capable of committing criminal offences but will not be capable of being prosecuted in the criminal courts. Instead, they will, where appropriate, be referred to a Children’s Hearing. The prosecution of children aged between 12 and 15 will remain a decision entirely for the Lord Advocate.

Evidence received

330. The Committee received several written submissions which expressed support for the proposal to raise the minimum age at which children may be prosecuted.257

331. Children 1st welcomed the proposed increase to 12 but commented that this was “the bare minimum and still leaves Scotland with a low age in comparison to many other European states.”258

332. Dr Jonathan Sher of Children in Scotland argued that 16, not 12, should be both the age of criminal responsibility and the age of criminal prosecution—

“That would dovetail with other things that already exist. The children’s hearings system, by and large, operates until the age of 16. Polmont young offenders institution starts to take offenders at the age of 16. Looked-after and accommodated children continue to be so until they age out at 16. Even if 16 is somewhat arbitrary, it is at least consistent with other laws relating to age and the perception of responsibility.”259

333. The Scottish Centre for Crime and Justice Research (SCCJR) generally welcomed the changes proposed, but noted that they fell short of the Scottish Law Commission’s recommendations—

“The Bill proposes that 8 years would be retained as the age below which children are incapable of committing crime; 12 would be introduced as the age below which children can no longer be prosecuted and 16 would remain as the (usual) age of automatic referral to the adult system. The only difference, then, is the inability to prosecute those children aged eight, nine, ten and eleven.”260

334. James Chalmers described as a “surprising omission” the decision not to implement the Scottish Law Commission recommendation to abolish the rule that no child under the age of eight can commita criminal offence—

“This is because there might be circumstances in which a child under that age had committed a crime, ought therefore to be referred to a children’s hearing, and could not be referred on any other ground (as in Merrin v S 1987 SLT 193). The Commission noted that virtually all consultees who had responded to the proposals in their Discussion Paper on this point agreed with this proposal (Report, para 3.24).”

335. Mr Chalmers concluded that “in the absence of good reason to the contrary – this recommendation should be implemented in the Bill.”261

336. The Scottish Children’s Reporter Administration (SCRA) expressed its support for the Scottish Government’s proposals on the grounds that the children’s hearings system is able to ensure that children get the most appropriate form of intervention and support, while addressing concerning behaviour. However, the SCRA cautioned that—

“if the [children’s hearings] system is to deal with the small number of very serious offences committed by 8-12 year olds it must be properly resourced and interventions must be focused and effectively delivered.”262

337. The office of Scotland’s Commissioner for Children and Young People (SCCYP) was also generally supportive, but with reservations—

“We believe that the Bill in its current form would continue to allow for children between 8 and 11 years of age to face ‘criminal’ consequences despite the new minimum age for prosecution set at 12. With section 41 [of the 1995 Act] retained in its present form, disposals of the welfare-based Children’s Hearing relating to this age group count as a conviction for the purposes of the Rehabilitation of Offenders Act 1974.”263

338. Maire McCormack, for the SCCYP, explained further—

“If a child accepts an offence ground or that is established, there are serious implications under section 3 of the Rehabilitation of Offenders Act 1974. Our office has evidence that there are implications later in life for children who accept such grounds, because the information is still carried when they are looking for employment or want to go to college. The fact that they accepted a ground as a young child can come back to haunt them.”264

339. A child dealt with by the welfare-based Children’s Hearing System could therefore still “have a criminal record if they and their relevant adult accept an offence ground or an offence ground is established by a Sheriff”. As a result, “questions would therefore remain as to whether the age of criminal responsibility has actually been raised – it could be argued that in terms of the criminal consequences for children who commit offences this remains at the unacceptably low level that is at present.”265

340. SCCYP suggested that section 41 of the 1995 Act should be repealed and “a new non-offence ground should be introduced to allow for children under 12 to be referred to the Children’s Hearing so that their behaviour and their needs can be addressed without the prospect of ‘criminal’ consequences.”266

341. The Law Society of Scotland also proposed the creation of a new non-offence ground for referral to a Children’s Hearing, suggesting it could be—

“along the lines of ‘the child has behaved in such a way as to cause (or risk causing) harm to himself/herself or another person or damage to property’ … The benefits of this proposal would be that the child would not carry the taint of criminality for the rest of his or her life and that he or she would receive early intervention.”267

Committee conclusions

342. The Committee recognises that there are various ways of addressing concerns about the fact that Scots law allows children as young as eight to be regarded as criminally liable and prosecuted through the courts, when a minimum age of 12 is recommended by the UN Committee. However, we remain unclear why the Scottish Government has opted for raising the minimum age at which a child may be prosecuted, rather than also abolishing the rule of law on the age at which children cannot be guilty of an offence (as the Scottish Law Commission recommended). An alternative, suggested by SCCYP, would have been to raise that age from eight to 12, and then to provide for a new “non-offence” ground to enable children below 12 to be referred to a Children’s Hearing in cases where other grounds for referral do not apply. We find it difficult to assess whether the approach adopted in the Bill is the best available option without a fuller explanation of the Scottish Government’s reasoning. While we recognise that the difference between the various approaches may be mostly theoretical, it would be useful to know how far the Scottish Government’s choice of approach was based on practical considerations, such as whether it would permit retention of children’s forensic data, or how offences committed by children would be recorded (and what implications this might have for their future prospects).

343. We recognise that children under 12 can sometimes do terrible things, and if there is to be a statutory ban on criminal prosecution in all such cases, it would be useful to have an assurance from the Cabinet Secretary that there is a sufficient range of disposals available within the children’s hearings system.

344. We note that the Bill does not change the existing situation in which the option of referring children to a Children’s Hearing on the ground that they have committed an offence is unavailable for a child under the age of eight. We note that the Scottish Government intends to bring forward a Children’s Hearings Bill in the near future and we trust that this issue will be properly and fully considered in that context.

345. On the question of whether 12 is the appropriate age threshold (either for being deemed capable of committing a crime, or for being liable to prosecution), we have no settled view. We recognise that any age is, to some extent, arbitrary, but there may be merit in having some consistency with age-limits in other relevant statutory contexts. We are conscious, in particular, that the new Sexual Offences (Scotland) Act sets an age threshold of 13 for the definition of various sexual offences against young children, and we suggest that the Scottish Government could do more to explain why the same age was not adopted in the current context.

Sections 58-60 Retention and use of Samples etc

Background

346. Sections 58-60 of the Bill extend the powers of the police to keep forensic (primarily, DNA and fingerprint) data in a way that is consistent with the European Convention on Human Rights.

347. The Policy Memorandum explains that where a person has been convicted in court of any offence, there is currently a power to retain his or her forensic data indefinitely. In addition, since January 2007, where a person has been proceeded against but not convicted in court of certain sexual or violent crimes, the person’s DNA can be retained for a period of three years, with discretion for the chief constable to apply to a sheriff for extensions of up to two years at a time. The Bill extends this latter arrangement to the retention of fingerprints and to certain cases within the children’s hearings system.

348. In the recent case of S and Marper v. the United Kingdom, the European Court of Human Rights held that the DNA retention policy in England and Wales, which allows indefinite retention of DNA and fingerprint data taken from a suspect, regardless of whether the suspect was convicted or even charged, was incompatible with Article 8 of ECHR (respect for privacy and family life). In so doing, the court contrasted this with the present arrangements in Scotland, on which it commented favourably.

349. In 2007, the Scottish Government asked Professor James Fraser, the Director of the Centre for Forensic Science at Strathclyde University and Chair of the European Academy of Forensic Science, to review the operation and effectiveness of the legislative regime governing police powers regarding the acquisition, use and destruction of forensic data. In September 2008, the Scottish Government published the Fraser report together with a consultation on the issues it raised. This work formed the basis of the provisions that have been included in the Bill.268

350. Section 58 authorises the retention of fingerprints and any other forensic data already taken from persons proceeded against but not convicted of a serious sexual or violent offence. Data would not have to be destroyed for at least three years, and the relevant chief constable would have discretion to apply to a sheriff for extensions of up to two years at a time. This would bring the law on the retention of fingerprints and other forensic data into line with current law on DNA retention.

351. Section 59 would authorise the retention of forensic data taken from children who are dealt with by the children’s hearing system for committing relevant violent or sexual offences, again for a period of three years with the possibility of subsequent extensions of up to two years if authorised by a sheriff. The list of relevant offences is to be prescribed by statutory instrument made under the affirmative procedure.

352. In addition, section 60 specifies that retained forensic data may only be used for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution; or for the identification of a deceased person or a person from whom the data originated. This is to provide clarity and better comply with the ECHR.

Evidence received – general responses

353. Responses to the proposals contained in the Bill were few and generally favourable, although some specific issues were raised.

354. The Nuffield Council on Bioethics supported the proposal to bring the law on the retention of fingerprints and other forensic data into line with existing law on DNA retention.269

355. GeneWatch argued that samples should be destroyed once DNA profiles have been obtained and loaded onto the DNA database because it is only the profile that is necessary for the purposes of future identification. GeneWatch also urged the Committee to consider putting the weeding rules for records relating to old and minor offences on a statutory basis, “with a view to improving public trust in the system of oversight for police records and linked forensic data”.270

356. Professor Fraser, in oral evidence to the Committee, said that he was satisfied that the proposals in the Bill achieved an appropriate balance between law enforcement and the rights of individuals—

“The main issue relates to the retention of samples from unconvicted people. Proportionality is a tricky issue, because there are not many data to allow detailed analysis. However, when I considered the three-year period, the available data showed that a considerable number of people reoffended during the period. That was a fairly short period, and the study related to serious offences, so the retention struck me as reasonable and balanced.”271

Alternatives to prosecution

357. ACPOS was concerned that the Bill failed to address what ACPOS saw as an oversight in the current law, which allows samples to be retained only where “criminal proceedings … were instituted” but no conviction was obtained. Since no criminal proceedings are instituted in cases where offenders are offered alternatives to prosecution (such as fiscal fines or fixed penalty notices), it is currently not possible for forensic data taken from such offenders to be retained.272

358. Asked to comment on this, Professor Fraser said—

“The issue of direct disposals came up, and was referred to in my report, but I did not feel that I had the data to make any real sense of that. It strikes me that the purpose of such disposals is the speedy administration of justice. That purpose had not previously taken DNA into account, and I felt that the issue merited more research and more consideration, so I did not express a view.”273

359. Tom Nelson, Scottish Police Services Authority, supported Professor Fraser’s view and added—

“An opportunity may have been missed; we need to be careful, and more work is needed. If more cases take the road of alternatives to prosecution, I will be concerned about losing opportunities to get people’s DNA profile and check it against the DNA database. A lot more work needs to be done in this area.”274

360. When asked about the same issue, the Cabinet Secretary for Justice said that the Scottish Government was considering whether there was a case for an amendment at Stage 2 to address this issue.275

Retention of samples etc. from children

361. The Nuffield Council on Bioethics recommended that, when considering requests for the removal of children’s DNA profiles and the destruction of their samples, “there should be a presumption in favour of the removal of all records, fingerprints and DNA profiles, and the destruction of samples”.276 Children 1st also argued in favour of a strong presumption against the retention of samples from children.277

362. The Law Society of Scotland submitted that it was not appropriate as a matter of principle to retain DNA and fingerprints from children who are dealt with by Children’s Hearings as opposed to the criminal courts.278

363. The Information Commissioner’s Office said that, while its preferred position was for no change to the current position, it recognised that—

“an element of retention would provide a balance between the public interest in retaining relevant material of those who have committed violent or sexual crimes and the recognition that offences committed by children may not be replicated in adulthood. The proposal contained within section 59 of the Bill reflects that balance.”279

364. Professor Fraser explained the basis for his conclusion on this issue—

“My recommendation was that a sample should be retained if the child accepted that he had committed, or was found by a sheriff to have committed, an offence in the narrow category of serious sexual and violent offences. Because the numbers involved are small, and because the offences are serious and involve some sort of judicial proceedings—that is, some process whereby the child is represented—I feel that the recommendation strikes a good balance between looking after the welfare of the very small number of children involved and public protection.”280

365. The Scottish Children’s Reporter Administration accepted that it may be necessary to retain DNA and other forensic evidence from a child but considered that there should be a judicial process, separate from the children’s hearings system, to determine whether there is a clear and justifiable reason for doing so.281

366. Similarly, the office of Scotland’s Commissioner for Children and Young People (SCCYP) argued that the automatic retention of the DNA profile of children dealt with by a Children’s Hearing for a qualifying offence was “disproportionate” and that a sheriff should only approve retention subject to the following five conditions—

“(1) the child has been referred on an offence ground; (2) the offence is one of a list of ‘trigger offences’ to be specified in the Bill; these should be serious violent and sexual offences; (3) the child and their relevant adult have accepted the ground, or it has been established by a sheriff; (4) the police or another relevant agency has made an application to the sheriff for an order to retain the child’s DNA for a period of up to three years; and (5) the sheriff makes a decision based on the risk that the child poses to public safety.”282

List of specified offences

367. Maire MacCormack, representing SCCYP, expressed concern that the Bill itself did not specify those offences that would trigger retention of children’s samples—

“The Bill talks about ‘sexual and violent offences’, but that is a broad spectrum and it does not define what those offences are. I know that a working group will be set up to look into that, but we need to consider the definitions.”283

368. The Law Society of Scotland also expressed concern that the list of prescribed offences is to be made by statutory instrument, albeit under affirmative procedure, “rather than placed on the face of the Bill”.284

369. The SCRA submitted that if a list of relevant offences is to be produced, it should be developed by an expert working group “representing all interests, including those of children and young people themselves”.285

370. Questioned on this point, the Cabinet Secretary said that the Scottish Government would consult the forensic data working group and would ensure that “appropriate people from a variety of backgrounds” were involved in drawing up the list of relevant offences.286

Committee conclusions

371. The Committee agrees with the Scottish Government that it is sensible to enable fingerprint data and other forensic data to be subject to the same ECHR-compatible retention regime as DNA data.

372. We are less certain about whether the current provisions in the Bill should be extended to cover forensic data taken from people who are then offered alternatives to prosecution. We certainly would not support any change that would result in the police being required or expected routinely to take samples in situations where, at present, fixed penalties or fiscal fines can be imposed with minimal time and bureaucracy. However, we also recognise the logic of saying that, where a sample has already been taken from an individual in connection with an offence, the decision to offer an alternative to prosecution rather than institute criminal proceedings should not be sufficient to determine whether the forensic data can subsequently be retained. We would therefore look forward to a Stage 2 amendment that would allow for the retention of data in such circumstances. However, in considering the terms of any such amendment, particularly the duration of retention provided for, we would wish to ensure that an appropriate balance was struck between considerations of consistency and proportionality.

373. In relation to the retention of forensic data taken from children referred to a Children’s Hearing, we are sympathetic to the broad outline of what is proposed, but uncomfortable with the fact that the Bill leaves unspecified the sexual or violent offences that would enable the retention of data in such cases. We take the view that retention of DNA and other data from children would be required only in a small proportion of cases, probably involving serious violent or sexual crimes. We note both the evident difficulties the Scottish Government has in defining the list of relevant offences satisfactorily and concerns that the children’s hearing system is not equipped to determine such questions. It would be helpful if the Scottish Government would provide us with its view of the suggestion by SCCYP that retention should only be on application to a sheriff.

374. The Committee is conscious that the retention of DNA and other evidence, particularly from children and from persons not convicted of significant crimes, can raise issues under Article 8 of ECHR and requires a proportional approach. We note both the suggestion by the Nuffield Council on Bioethics that there should be a presumption in favour of the removal of all records, fingerprints and DNA profiles, and the argument by Genewatch that DNA samples should be destroyed once DNA profiles have been obtained, and would seek the comments of the Scottish Government on these matters.

375. We would therefore expect the Scottish Government to report in the Stage 1 debate on its position on these matters and on progress with the forensic data working group and, ideally, commit to providing us with a draft list of proposed relevant offences before Stage 2.

part 4 – evidence

Section 62: Witness statements: use during trial

Background and evidence received

376. Under section 62, courts would be able to allow witnesses to refer to prior statements while giving evidence. This is related to section 40, which allows the prosecutor to give the witness a copy of his or her written statement in advance of giving evidence in court. The Policy Memorandum explains that it is intended “to ensure fairness for witnesses in giving evidence in criminal cases” and that it had been generally supported by those who contributed to Lord Coulsfield’s review of the law and practice of disclosure.287

377. The provision was supported by the Solicitor General for Scotland who said it would reduce the length of trials by reducing time spent on questioning witnesses, and would improve the criminal justice process by enabling witnesses to point out any inaccuracies in their statements. He also argued that many trials can become “a memory test for witnesses”, pointing out that witnesses are often questioned in court on statements they may have made many years earlier—

“If they cannot remember precisely what they said or if they say something slightly different, they will be accused of being inconsistent. It seems unfair that the only person in a prosecution who cannot see the statement before the trial is the witness who gave the statement in the first place.”288

378. The Solicitor General also explained that police officers are already allowed to refer to their notebooks, which may contain their own statements, while giving evidence, and that this provided a precedent for allowing witnesses also to refer to their statements during trials. Similar arrangements were also made in other jurisdictions, including England and Wales.

379. However, the Judges of the High Court of Justiciary said that section 62 gave “real cause for concern”. They explained that prior statements given by civilians (as opposed to police officers or expert witnesses) are written down by the investigating police officer and may not accurately reflect what the witness actually said; partly for this reason, the Scottish courts have normally accorded them much less weight than oral evidence given from the witness box.

380. In the judges’ view, there was “a real danger that the new provision will encourage a greater reliance to be placed on the contents of police statements, as opposed to a witness’ recollection of what happened and that this may complicate and lengthen trials.”289 They also suggested the provision was unnecessary—

“In our opinion, the limited circumstances in which the common law and the provisions of section 260 of the [1995] Act enable the Court to allow reference to prior statements are more than sufficient to ensure that a witness can be questioned as to the contents of a prior police statement should the interests of justice require that to happen.”290

381. The Sheriffs’ Association noted that there are at present four situations in which prior statements of witnesses other than the accused may be used during a trial—

“One is where the evidence of the witness is inconsistent with a prior statement (s. 263(4) of the 1995 Act). The purpose is at least to challenge the credibility and reliability of the witness and also in the hope that the witness might accept the truth of the prior statement. Any part of the prior statement becomes evidence only in so far as the witness accepts it to be the truth. The second is where the witness adopts a prior statement in a document of which the witness was the originator as his or her evidence in court (s. 260). The third is where a witness cannot remember everything, accepts that he or she made a prior statement to someone and accepts that if he or she said what he or she is alleged to have said, it must be the truth. In that case the person to whom the statement was made may give evidence of it and it becomes part of the evidence of the witness: Jamieson v. HM Advocate, 1994 J.C. 251; 1994 S.C.C.R. 610. The fourth is where the statement was recorded by the witness at the time of the incident to which it relates and is used to refresh the memory of the witness.”291

382. According to the Association, section 62 “will lead to a number of appeals to define its parameters”. Its view was that, if the present common law position is to be changed, then this should be in accordance with Lord Coulsfield’s recommendation – namely, that witnesses should only be supplied with prior statements taken by the police that they read and signed at or close to the time when the statement was taken.292

383. The Law Society of Scotland was also opposed to the proposals, largely because of concerns about the accuracy of prior statements and because “material discrepancies between statements given to the police and evidence given in court at a later date can call into question the credibility and reliability of a witness”.293 As Bill McVicar of the Society put it in oral evidence—

“The problem is that the statement will not be the words of the witness. Having asked witnesses countless times about the statements that they have given to the police and whether what is contained in those statements is right, I can say that, unless almost every witness in the universe is telling lies about it, the police tend not to write down exactly what the witness has said.”294

384. Ian Duguid, representing the Faculty of Advocates, expressed complete opposition to the provisions. He explained that although a statement recorded by a police officer is admissible in court, a statement taken by a legally qualified solicitor from a witness for the defence is called a precognition, which is inadmissible in accordance with the practice of the courts—

“The difficulty immediately arises that the prosecution is placed at an extreme advantage over the defence. The question arises whether the provision will ever be sustained as a matter of fairness to the accused. If prosecution witnesses can have a statement in front of them and read it out, and defence witnesses have no such facility, is that a recognition that defence witnesses are in a different position to prosecution witnesses? Of course it is not.”295

Committee conclusions

385. The Committee was unable to reach consensus on the merits of this provision. On the one hand, we can understand why it seems anomalous that a witness, almost alone among those taking part in a trial, does not have access to the statement he or she made at the time the offence was investigated (which may have been months or even years previously). On the other hand, we understand the concerns expressed in evidence about the accuracy of these statements, and the risk of exacerbating a difference of treatment between prosecution and defence witness statements. We would therefore appreciate clarification from the Scottish Government on its justification for this provision, particularly in view of the strong reservations expressed in evidence from the legal profession and the judiciary.

Section 63: Spouse or civil partner of accused a compellable witness

Background

386. Under section 264 of the Criminal Procedure (Scotland) Act 1995, the spouse of an accused person is always a competent witness, but is only a compellable witness for the prosecution or for a co-accused where (by virtue of the common law) he or she was a victim of the offence charged. As a result, a married parent can, for example, decline to give evidence against a spouse accused of abusing their child. Civil partners are given similar protection against compellability by section 130 of the Civil Partnership Act 2004.

387. Section 63 of the Bill replaces these existing provisions with a new section in the 1995 Act specifying that the spouse or civil partner of an accused is both a competent and a compellable witness in all circumstances. The Policy Memorandum states that the current law has caused difficulty, particularly where the crime is against a child and there is important and material evidence that could have been obtained from a spouse. It says that, in some cases, accused persons have married partners in order to ensure they cannot give evidence against them.296

Evidence received

388. ACPOS was supportive of the change, saying that many offences where spouses or civil partners are competent witnesses occur in the family home where their evidence could be crucial for a conviction. This provision, in ACPOS’s view, will ensure that children are better protected by the criminal justice system.297

389. Victim Support Scotland supported the principle, particularly in cases of serious and organised crime, but suggested that the value of using evidence from a spouse or partner should be subject to a test of proportionality and risk assessment in order to “protect the integrity of the family”.298 South Lanarkshire Council was also supportive in principle but sought assurances that sufficient safeguards would be put in place to protect individuals who may be subject to abuse or threat by a spouse or partner.299

390. North Lanarkshire Council went further, arguing that compelling people to give evidence against their spouses or partners could place them at greater risk. Pointing out that the vast majority of currently “non-compelled” witnesses are women experiencing domestic abuse, the Council said that if a woman in those circumstances is compelled to give evidence and refuses, she could be held in contempt of court and be classed as an offender herself. In the Council’s view, this would present her with a “Hobson’s choice” that had no place in a modern justice system.300

391. The Law Society of Scotland also opposed the provision, primarily because it ignored the “long-established purpose behind the rule on compellability … which attaches to the status of marriage and the risk of perjury by the spouse”. Experience suggested that people were only rarely prepared to give evidence against their spouses or partners even when compelled to do so by law. The Society suggested that a fairer approach would be to bring the law in Scotland in line with that in England and Wales, where the spouse or civil partner of an accused is a compellable witness for the prosecution only where the offence is one of personal violence against the spouse or civil partner or a child under the age of 16, a sexual offence against such a child, or related offences of attempt, conspiracy etc. in relation to those offences.301

Committee conclusions

392. The Committee understands the underlying rationale for this provision, but acknowledges the concerns raised in evidence that removing entirely the current limits on compellability, and hence making persons who refuse to give evidence against their spouses or partners liable to a charge of contempt of court, risks putting them in an invidious position in certain circumstances. We therefore invite the Scottish Government to explain further its approach in the light of the evidence received.

Section 66: Witness anonymity orders

Background and evidence

393. The purpose of section 66 is to replicate the regime established in England and Wales by the Criminal Evidence (Witness Anonymity) Act 2008, which enables the courts to grant “witness anonymity orders” in appropriate cases. The Bill for this Act was introduced by the UK Government on an emergency basis in response to the decision of the House of Lords to quash the conviction in the case of R v Davis [2008] UKHL 36,on the basis of its concerns over the use of anonymous witnesses.302

394. In their written submission, the Judges of the High Court of Justiciary agreed that it was appropriate to provide a statutory basis for the powers of Scottish courts to permit witnesses to give evidence anonymously—

“It would be unsatisfactory to leave the matter to be governed by the common law in Scotland when the House of Lords has held that no such common law power exists in England and Wales. Although not directly applicable in Scotland, the decision in Davis may be thought to have introduced a measure of uncertainty about the position here.”303

395. According to the Crown Office, protective measures such as those referred to in section 66(4) of the Bill had been used before in Scotland; nevertheless, following the House of Lords decision, “the current position is that no guarantee can be given to witnesses that there are steps which can be taken to protect their identity.”304

396. Questions were also raised about the drafting of this section of the Bill. The Judges of the High Court of Justiciary queried one of the tests for a witness anonymity order set out in inserted section 271Q, namely that “the witness would not testify if the proposed order were not made” (Condition D)—

“Taken literally, this condition might be thought to be almost impossible to satisfy since any witness is obliged to testify when validly cited and called upon so to do. The point might be met by making it clear that the condition is to the effect that the witness would not willingly testify if the proposed order were not made.”305

397. The SCDEA also had concerns about the drafting of condition D—

“It would appear however, from the way in which this condition is framed, that it may present a barrier to those willing witnesses who may be denied anonymity only because they are willing to testify.”306

Committee conclusion

398. The Committee accepts the rationale for this provision, but would invite the Scottish Government to reflect on the drafting in the light of the points raised by witnesses.

part 5 – criminal justice

Section 68: Upper age limit for jurors

Background and evidence

399. Section 68 raises the upper age limit for sitting on a jury in criminal cases in Scotland from 65 to 70, bringing the position in Scotland in line with the rest of the UK. The aim is to enlarge the pool of potential jurors by around 200,000 and ensure that, as the demographic profile of Scotland changes, juries are drawn from a wider age range.307

400. Although the Judges of the High Court of Justiciary supported this move, they pointed out that the upper age limit for jurors in civil trials would remain unchanged at 65—

“While we appreciate that the scope of the Bill does not extend to civil as opposed to criminal procedure, we would observe that it may be thought to be anomalous to have different age limits for jurors in criminal and civil cases.”308

401. The Law Society of Scotland also raised no objection to the proposal, while stressing the importance of considering the age balance of jury composition.309

Committee conclusion

402. We endorse this provision, so far as it goes, but note that it will create an inconsistency in terms of the upper age limit for jurors in criminal and civil trials. While we recognise that this cannot be addressed through the present Bill, we recommend that the Scottish Government address this through separate legislation at the earliest practical opportunity.

Section 70: Data matching for detection of fraud etc.

Background

403. The National Fraud Initiative is a data matching exercise conducted for the purpose of assisting in the prevention and detection of fraud. It already operates on a non-statutory basis in Scotland and has identified around £37 million of fraud and error in Scotland and led to over 75 prosecutions. The Serious Crime Act 2007 provided a statutory basis for the National Fraud Initiative in England, Wales and Northern Ireland, and the purpose of section 70 is to make similar provision for Scotland. This involves giving Audit Scotland the power to conduct data matching exercises on its own accord, or to arrange for such exercises to be conducted on its behalf.310

404. Data matching involves the use of computerised techniques to compare information about individuals held by different public bodies, and on different financial systems, to identify circumstances (matches) that might suggest the existence of fraud or error.311

405. An Audit Scotland report on the National Fraud Initiative was considered by the Audit (now Public Audit) Committee in May 2008. The Committee agreed to note the report and to write to the Cabinet Secretary for Justice to request that legislation providing explicit data matching powers for Audit Scotland be brought forward at the earliest opportunity.312

Evidence received

406. In evidence to the Committee, Audit Scotland explained that data matching exercises have been carried out by the Audit Commission in England for some years using auditors’ powers to obtain information from audited bodies and others for the purposes of their audit—.

“Without similar explicit powers in Scotland, Audit Scotland would have to continue to rely on its existing powers to obtain the relevant information. These powers are not consistent across the different parts of the public sector and do not allow for cross border matching. … In the absence of similar clear legislation in Scotland it will undoubtedly be the case that fraud and error will be less likely to be detected in the public sector in Scotland than elsewhere in the United Kingdom and cross border cases will not be detected at all.”313

407. The proposals were also supported by the Information Commissioner’s Office (ICO)—

“We welcome the clarification of practice in Scotland and note the attention paid to protection of privacy within this section of the Bill which is particularly important given the breadth of information which may be sought by Audit Scotland in fulfilment of this function. We also welcome the requirement that Audit Scotland produce a data matching code of practice and that the ICO must be consulted prior to its publication and subsequent amendments.”314

Section 82: Compensation for miscarriages of justice

Background

408. Section 133 of the Criminal Justice Act 1988 provides for a scheme of compensation for miscarriages of justice which, in Scotland, is operated by the Scottish Ministers. There is also a non-statutory ex gratia scheme dating from 1986, and the main purpose of section 82 of the Bill is to put that on a statutory footing by making provision for it within the existing statutory scheme. Accordingly, Scottish Ministers are given the power, by order, to provide for the circumstances in which compensation may be paid for a miscarriage of justice (or for wrongful detention, or a decision by the prosecutor not to take or to discontinue proceedings).

Subordinate Legislation Committee report

409. The Subordinate Legislation Committee (SLC), in its report on the Bill, questioned why the ex gratia scheme was to be provided for in subordinate legislation, when the existing scheme was provided for directly in the 1988 Act. It also questioned the scope of the delegated power, which in its view went beyond what was required to achieve the Scottish Government’s stated purpose for the provision. The Scottish Government told the SLC that it wished to have flexibility in relation to how it gave statutory effect to the ex gratia scheme, but the SLC concluded that “no adequate justification has been given by the Scottish Government for the power to extend the scheme beyond that currently operating”.315

Committee conclusion

410. The Committee notes and endorses the concerns expressed by the Subordinate Legislation Committee about the scope of the delegated power proposed. We therefore invite the Scottish Government either to justify that scope by reference to any changes of substance it might wish to make to the existing ex gratia scheme in the course of putting it on a statutory basis, or to limit the scope of the delegated power to what is required to replicate the existing scheme without substantial change.


Footnotes:

148 Scottish Government. (2008) Protecting Scotland’s Communities: Fair Fast and Flexible Justice. Available at: http://www.scotland.gov.uk/Publications/2008/12/16132605/0.

149 Explanatory Notes, paragraph 90, Policy Memorandum, paragraph 75, Financial Memorandum, paragraph 785.

150 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2042.

151 ADSW. Written submission to the Justice Committee.

152 Sheriffs’ Association. Written submission to the Justice Committee.

153 Financial Memorandum, paragraph 785.

154 SCCJR. Written submission to the Justice Committee.

155 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Cols 1896-1897.

156 Scottish Parliament Justice Committee. Official Report, 19 May 2009, Col 1897.

157 Association of Chief Police Officers in Scotland. Written submission and supplementary written submission to the Justice Committee.

158 Scottish Police Federation. Written submission to the Justice Committee.

159 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2179.

160 Scottish Government. Supplementary written submission to the Justice Committee, 29September 2009.

161 Subordinate Legislation Committee. Report on the Criminal Justice and Licensing (Scotland) Bill, paragraphs 23-31. The SLC raised exactly similar concerns about paragraphs 10(3) and (4) of schedule 2, which make equivalent provision in relation to periods of detention for offenders aged under 21 – see paragraphs 32-35 of its Report.

162 Scottish Government. (2008) Sentencing Guidelines and a Scottish Sentencing Council – Consultation and Proposals. Available at:

http://www.scotland.gov.uk/Resource/Doc/236809/0064977.pdf

163 Victim Support Scotland and the Joint Faiths Advisory Board on Criminal Justice. Written submissions to the Justice Committee.

164 Association of Chief Police Officers in Scotland, Law Society of Scotland. Written submissions to the Justice Committee.

165 Faculty of Advocates. Written submission to the Justice Committee.

166 Sheriffs’ Association. Written submission to the Justice Committee.

167 Scottish Parliament Justice Committee. Official Report, 12 May 2009, Col 1771.

168 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2060.

169 Policy Memorandum, paragraph 107.

170 Policy Memorandum, paragraph 115.

171 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

172 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

173 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2064.

174 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2062.

175 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Cols 2195-6.

176 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2200.

177 Criminal Justice and Licensing (Scotland) Bill, section 25(2).

178 Scottish Crime and Drug Enforcement Agency. Written submission to the Justice Committee.

179 Scottish Crime and Drug Enforcement Agency. Written submission to the Justice Committee.

180 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

181 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

182 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

183 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1982.

184 Sheriffs’ Association. Written submission to the Justice Committee.

185 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2064.

186 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2197.

187 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2065.

188 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1906.

189 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2197.

190 Scottish Crime and Drug Enforcement Agency. Written submission to the Justice Committee.

191 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1907.

192 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2067.

193 Policy Memorandum, paragraph 115.

194 Policy Memorandum, paragraph 115.

195 Sheriffs’ Association. Written submission to the Justice Committee.

196 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2063.

197 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

198 Policy Memorandum, paragraph 117.

199 Policy Memorandum, paragraph 119.

200 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1908.

201 Scottish Parliament Justice Committee, Official Report, 9 June 2009, Col 2070.

202 Sheriffs’ Association. Written submission to the Justice Committee.

203 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

204 Sir Gerald Gordon. Written submission to the Justice Committee.

205 The Law Society of Scotland. Written submission to the Justice Committee.

206 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1985.

207 Her Majesty’s Revenue and Customs. Written submission to the Justice Committee.

208 Scottish Crime and Drug Enforcement Agency. Written submission to the Justice Committee.

209 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2066.

210 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1910.

211 ACPOS. Supplementary written submission to the Justice Committee.

212 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2199.

Sections 58-60: Retention and use of samples etc.

213 Policy Memorandum, paragraph 153.

214 Criminal Justice and Licensing (Scotland) Bill, section 34(2) inserting section 51A(8)(b)

215 Policy Memorandum, paragraph 158.

216 Policy Memorandum, paragraph 165.

217 Allan Balsillie; Consenting Adult Action Network. Written submissions to the Justice Committee.

218 James Chalmers. Written submission to the Justice Committee.

219 James Chalmers. Written submission to the Justice Committee.

220 James Chalmers. Written submission to the Justice Committee.

221 Engender; Zero Tolerance; Glasgow City Council. Written submissions to the Justice Committee.

222 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Cols 1985-6.

223 Crown Office and Procurator Fiscal Service. Written submission to the Justice Committee.

224 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Cols 2080-1.

225 Women’s Support Project. Written submission to the Justice Committee.

226 Engender; Women’s Support Project; Professor Clare McGlynn and Dr Erika Rackley; Violence Against Women Strategy Multi-Agency Working Group. Written submissions to the Justice Committee.

227 Professor Clare McGlynn and Dr Erika Rackley. Written submission to the Justice Committee.

228 ACPOS. Supplementary written submission to the Justice Committee.

229 Criminal Justice and Licensing (Scotland) Bill, section 34(2).

230 Zero Tolerance Charitable Trust; Violence Against Women Strategy Multi-Agency Working Group. Written submissions to the Justice Committee.

231 Scottish Crime and Drug Enforcement Agency. Written submission to the Justice Committee.

232 ACPOS. Supplementary written submission to the Justice Committee.

233 Violence Against Women Strategy Multi-Agency Working Group; Rape Crisis Scotland; Zero Tolerance; Scottish Centre for Crime and Justice Research. Written submissions to the Justice Committee.

234 Rape Crisis Scotland. Written submission to the Justice Committee.

235 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1959.

236 ACPOS. Supplementary written submission to the Justice Committee.

237 ACPOS. Supplementary written submission to the Justice Committee.

238 James Chalmers. Supplementary written submission to the Justice Committee.

239 Violence Against Women Strategy Multi-Agency Working Group; Rape Crisis Scotland; Zero Tolerance Charitable Trust. Written submissions to the Justice Committee.

240 Rape Crisis Scotland. Written submission to the Justice Committee.

241 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

242 National Gender-based Violence Programme Team, Scottish Government. Written submission to the Justice Committee.

243 Professor Clare McGlynn and Dr Erika Rackley. Written submission to the Justice Committee.

244 ACPOS. Supplementary written submission to the Justice Committee.

245 Consenting Adult Action Network. Written submission to the Justice Committee.

246 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

247 ACPOS. Written submission to the Justice Committee.

248 Care for Scotland. Written submission to the Justice Committee.

249 See written answer of 31 August 2009 by Kenny MacAskill to S3W-26275. Available at: http://www.scottish.parliament.uk/Apps2/Business/PQA/Default.aspx

250 Policy Memorandum, paragraph 191.

251 Scottish Government. (2008) UN Convention on the rights of the child: UK Concluding Observations 2008, paragraph 108. Available at: http://www.scotland.gov.uk/Publications/2009/01/27155153/0

252 United Nations. (1989) Convention on the Rights of the Child. Available at: http://www2.ohchr.org/english/law/crc.htm#art40

253 United Nations Committee on the Rights of the Child. (2007) General Comment No.10 (2007) Children’s rights in juvenile justice. Available at: http://www2.ohchr.org/english/bodies/crc/docs/GC10_en.doc

254 Scottish Government. (2008) Improving the Lives of Children in Scotland - are we there yet? Available at: http://www.scotland.gov.uk/Publications/2008/12/18090842/0

255 Scottish Law Commission. (2002) Report on Age of Criminal Responsibility. Available at: http://www.scotlawcom.gov.uk/downloads/rep185.pdf

256 Policy Memorandum, paragraph 192.

257 Action for Children Scotland; Children in Scotland; COSLA; ADSW. Written submissions to the Justice Committee.

258 Children 1st. Written submission to the Justice Committee.

259 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1945.

260 Scottish Centre for Crime and Justice Research. Written submission to the Justice Committee.

261 James Chalmers. Written submission to the Justice Committee.

262 Scottish Children’s Reporter Administration. Written submission to the Justice Committee.

263 Scotland’s Commissioner for Children and Young People. Written submission to the Justice Committee.

264 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1944.

265 Scotland’s Commissioner for Children and Young People. Written submission to the Justice Committee.

266 Scotland’s Commissioner for Children and Young People. Written submission to the Justice Committee.

267 Law Society of Scotland. Written submission to the Justice Committee.

268 Policy Memorandum, paragraph 296. The Scottish Government consultation (including the Fraser report) is available at http://www.scotland.gov.uk/Publications/2008/09/22154244/0.

269 Nuffield Council on Bioethics. Written submission to the Justice Committee.

270 Genewatch UK. Written submission to the Justice Committee.

271 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1995.

272 ACPOS. Written submission to the Justice Committee.

273 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Cols 1995-6.

274 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1996.

275 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Cols 2201-2.

276 Nuffield Council on Bioethics. Written submission to the Justice Committee.

277 Children 1st. Written submission to the Justice Committee.

278 Law Society of Scotland. Written submission to the Justice Committee.

279 Information Commissioner’s Office. Written submission to the Justice Committee.

280 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1998.

281 Scottish Children’s Reporter Administration. Written submission to the Justice Committee.

282 Scotland’s Commissioner for Children and Young People. Written submission to the Justice Committee.

283 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Col 1956.

284 Law Society of Scotland. Written submission to the Justice Committee.

285 Scottish Children’s Reporter Administration. Written submission to the Justice Committee.

286 Scottish Parliament Justice Committee. Official Report, 23 June 2009, Col 2202.

287 Policy Memorandum, paragraphs 200-1.

288 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Cols 2070-1.

289 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

290 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

291 Sheriffs’ Association. Written submission to the Justice Committee.

292 Sheriffs’ Association. Written submission to the Justice Committee.

293 Law Society of Scotland. Written submission to the Justice Committee.

294 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1991.

295 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1990.

296 Policy Memorandum, paragraph 318.

297 ACPOS. Written submission to the Justice Committee.

298 Victim Support Scotland. Written submission to the Justice Committee.

299 South Lanarkshire Council. Written submission to the Justice Committee.

300 North Lanarkshire Council. Written submission to the Justice Committee.

301 Law Society of Scotland. Written submission to the Justice Committee.

302 Policy Memorandum, paragraph 331.

303 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

304 COPFS. Written submission to the Justice Committee.

305 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

306 Scottish Crime and Drug Enforcement Agency. Written submission to the Justice Committee.

307 Policy Memorandum, paragraph 358.

308 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

309 Law Society of Scotland. Written submission to the Justice Committee.

310 Policy Memorandum, paragraphs 362-3.

311 Audit Scotland. National Fraud Initiative. Available at: http://www.audit-scotland.gov.uk/work/nfi.php

312 Scottish Parliament Public Audit Committee. Minute of Proceedings, 28 May 2008. Available at: http://www.scottish.parliament.uk/s3/committees/audit/mop-08/aumop08-0528.htm

313 Audit Scotland. Supplementary written submission to the Justice Committee.

314 Information Commissioner’s Office. Written submission to the Justice Committee.

315 Subordinate Legislation Committee. Report on the Criminal Justice and Licensing (Scotland) Bill, paragraphs 51-58.
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