Criminal Justice in Scotland's Parliament

This part of the site is a weekly review of criminal justice business at Holyrood starting, in its present format, from September 2006. The page is supported by a grant awarded by the Clarke Foundation for Legal Education and is written by our Parliament correspondent, Katrina Morrison.

New: "Handy guide to criminal justice in the Scottish Parliament June 2007 - August 2008".

Glossary: 'Law Officers' = the Lord Advocate and the Solicitor-General for Scotland. 'SPICe' = Scottish Parliament Information Centre

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Parliamentary report for the 10th - 14th of November, 2008

The Justice Committee continued hearing evidence as part of its scrutiny into the Sexual Offences (Scotland) Bill and also debated the roll out of Justice of the Peace courts. In the Chamber there were questions to the Law and Justice Officers. 

The Justice Committee

Subordinate legislation – Justice of the Peace Court (Sheriffdom of Glasgow and Strathkelvin) Order 2008

The Committee were joined at the beginning of their meeting by the Cabinet Secretary and his officials to discuss an Order which sought to make provisions in relation to the establishment of a Justice of the Peace court in the Sheriffdoms of Glasgow and Strathkelvin. The order would establish a JP Court in the Sheriffdom of Glasgow and Strathkelvin, and makes consequential and transitional provision for the three district courts. This Order was made under the Criminal Proceedings etc Reform (Scotland) Act 2007, which has made a range of changes across the whole of the summary justice system including introducing more direct measures (fiscal fines), and making changes to summary court procedure. This legislation also enacted recommendations made in the McInnes Review which recommended that the operation of all of Scotland’s courts should be unified under the Scottish Court Service (SCS).

Speaking to the Committee, the Cabinet Secretary said that JP Courts have already been established in Lothian and Borders and Grampian, Highland and Islands sheriffdoms. He was questioned by Committee members about the distribution of district courts throughout Scotland, with Robert Brown (LD) emphasising the need for courts to remain local even though there was a need for rationalising court resources nationally. The Cabinet Secretary replied that it was indeed important that justice is locally accessible for communities, but he said that decisions on which local courts should continue and which should not, was based on a range of factors including the volume of court business, the ability of the premises to provide the balance between local identity and security and appropriate service, and proximity to other courts. Robert Brown was unhappy about this Order because it would close down a busy district court, and he sought to annul the Order, which meant that it would return to the Committee for further consideration next week.

You can read this part of the meeting in the Official Report, and read the accompanying paper on page 4 of the Committee Papers.

Sexual Offences (Scotland) Bill: Stage 1

Following this the Committee continued taking evidence as part of their Stage 1 scrutiny of the Sexual Offences Bill. This Bill seeks to provide a statutory framework for sexual offences, which are currently prosecuted under a disparate range of common law offences. It also make changes to existing law: it defines ‘consent’ as ‘free agreement’, and also provides a list of occasions when consent can be presumed to be absent (for example, if an individual were too intoxicated to be able to give consent, or if they had agreed or submitted to the act because they were deceived about the nature of the activity). The Bill also makes changes to the law in relation to sexual offending and children and young people (see last week’s Parliamentary report for evidence taken in relation to this part of the Bill).

The first panel before the Committee comprised of spokespeople from the Equality and Human Rights Commission, LGBT, and the Equality Network. They all warmly welcomed the proposals in the Bill which put male rape on an equal footing to female rape, although there was nonetheless an agreement between the witnesses that the majority of rapes are carried out by men against women. There was some discussion about whether the definition of ‘rape’ could apply if a woman had been sexually assaulted by another women using an object, given research which showed that one in 15 lesbian or bisexual women say that they have been raped by a partner. The witnesses said it was therefore important to ensure that bill included an offence of ‘rape with an object’ which is distinct and not subsumed within general sexual assault. The witnesses were asked about the thorny issue of ‘prior consent’ which has already proved so controversial during Committee debate. This part of the Bill would allow a defence of rape if the victim had given consent at an earlier stage, and they then became unable to give (or withdraw) the consent when sexual activity took place. Although it was recognised that this was included in the Bill in order to protect from criminalisation in certain instances (for example in the case of a long–term relationship), it was nonetheless argued by the witnesses that the dangers of including this wording in the Bill, far outweighed the benefits.

The second panel comprised of a single witness from Enable Scotland. He argued that the section of the Bill relating to breaches of trust in the situation of consensual sexual activity between someone with learning disabilities and their carer should be removed. Whilst emphasising that his organisation in no way condones such breaches of trust, they believed that the criminal law was not helpful in protection adults with learning disabilities once such behaviour has occurred. He argued it was better to take a pragmatic approach, which would encourage people to come forward and report such behaviour, saying that this would be much more likely to occur if this behaviour was not criminalised. He continued that there were other disciplinary procedures which could be taken against the carer, such as dismissal or removal from a care registry. Committee member Paul Martin (Lab), argued that there was a need for such behaviour to be criminalised given that even though an adult with learning disabilities has capacity to consent, they may nonetheless be preyed on or taken advantage of. The witness replied that making sexual behaviour in such a scenario a criminal offence, would not actually help to protect the vulnerable people involved, and what people with leaning disabilities want is to be less protected, but better educated and better supported.

The third panel was comprised of a witness from the Scottish Churches Parliamentary Office, and a spokesperson from the Evangelical Alliance. Both the speakers agreed that the role of the criminal law in this area was to protect vulnerable people, and they were both persuaded that the Bill as whole delivered on this. Nearly all of their evidence pertained to the sections of the Bill relating to sexual conduct between older children (13 to16 year olds). The Bill as it currently stands would criminalise consensual sexual activity between children of this age, whilst in practice operating discretion so that the majority of these cases would not be prosecuted. The arguments for this are firstly that the law would continue to send out the message that this behaviour was not condoned and would therefore also not invite increased sexual activity. Secondly, it would also retain the possibility of prosecution in cases in which one of the people involved were exploited. Nigel Don (SNP) is the Committee member who has consistently prompted witnesses to consider whether it was useful or beneficial to have a law on statute that is routinely not enforced. All the witnesses so far have agreed that, although this situation is not ideal, it was nonetheless the best way to proceed, because of the need to send a clear message, and also allow an avenue for prosecution in some cases. Witnesses tend to have also recognised the need for discretion, because the law is dealing with children’s differing rates of development.

It was suggested by the Evangelical Alliance that many children between the ages of 13 and 16 do not have the capacity to consent to sexual activity, and therefore this should be criminalised. Although the law would be rather a blunt instrument in this case, it could nonetheless send out a clear message that sexual activity should not be happening. He said he understood that this would have implications in some cases, but the organisation did not feel that these outweighed the benefit of having a law which sends out the message that the sex between this age ground is not appropriate. The witness from the Scottish Churches Parliamentary Office disagreed, saying that criminalising young people who engage in consensual sex is not the most effective way of discouraging them from engaging in sexual activity. He believed that in relation to consensual sexual activity in this age group there was scope for the involvement of the law, but not the criminal law, and he suggested that such a case should be dealt with by a welfare referral to the Children’s Hearing System. He said that otherwise, the law would be sending a confusing signal to young people if they had to be constantly reminded the there was discretion in the prosecution of these offences, which would proceed on the assumption that the vast majority of cases would not be prosecuted.

The final panel of witnesses also represented Christian organisations, and they comprised of spokespeople from CARE (Christian Action Research and Education), and the Christian Institute. Again, questions seemed to focus on the issue of sexual relations between older children. The witnesses were keen to emphasise the importance of the criminal law in indicating society’s views and guiding young people’s behaviour, with one of the witnesses saying that if the law would be weakened, this may encourage underage sexual activity. Although there was a need for discretion in many cases, the law also needed to be there to intervene in the most serious cases. One of the witnesses said that although some may argue that young people take no cognisance of the law in relation to underage sex, there was some research which showed that some young people used the age of consent as a ‘buffer’ which enabled them not to consent to sexual activity, which shows that young people do think about the law in this area. Both the witnesses did not wish to see a distinction between younger and older children, saying that everyone under 16 should be viewed as children, and therefore 16 must be viewed as the appropriate age of consent for sexual intercourse. One of the witnesses acknowledged that there may be some risks with criminalising all sexual activity with those under 16, but he called for the use of ‘discretion and common sense’, so that kissing, for example, would not be criminalised. The witnesses were untroubled about the possibility of having a law on statute that may regularly not be prosecuted, saying that it would nonetheless send a clear message of society’s disapproval if it were on statute, even if it were routinely not enforced, however, they both recognised the need for discretion in prosecution

You can read all the witnesses’ evidence in the Official Report, and you can also access the various documents related to the Bill on its homepage. You can also read the press coverage in the CJScotland newsblog.

Justice and Home Affairs in Europe

Finally, the Committee considered a paper from the clerk which updates them on the main issues currently being taken forward at an EU level which may be of interest to them. The Committee members agreed to seek more information from the Scottish Government about Eurojust, the EU organisation involved in coordinating the fight against organised crime, and the Prum convention, which deals with DNA data, fingerprint exchanges, and joint police operations. They also decided to keep an eye on issues related to matrimonial law and the enforcement of maintenance obligations.

You can read this part of evidence in the Official Report, and also read the full paper from the clerk in pages 7 – 21 of the Committee Papers.

You can also watch the whole meeting on Holyrood.TV for up to one month after the meeting.

The Chamber

Questions to the Law and Justice Officers

Off–sales licence removals

The first question to the Law and Justice Officers came from Tom McCabe (Lab) who asked how many licences have been removed from off–sales businesses for selling alcohol to people under 18, and how many of these licences have been reinstated again by a sheriff. The Cabinet Secretary replied that licensing boards can currently only suspend licenses, not remove them, and their decisions can also be immediately appealed. He said that this would change from next September next year however, when the effects of the Licensing Act (Scotland) 2007 will come into effect which give Boards greater powers over retailers who break the law in this area.

HMP Addiewell

Rhona Brankin (Lab) asked the Cabinet Secretary if he would bring forward the opening of the new prison at Addiewell in order to relieve overcrowding. She argued that if this could not be done, then the Secretary ought to consider expanding HMP Kilmarnock, which should be given priority over the rebuilding of HMP Greenock and HMP Inverness, which, although welcome would not increase capacity. Mr MacAskill replied that the opening of the new prison at Addiewell was due to take place on the 12th December, and this date could not be changed because it has been carefully planned over the past three years. He said that he was committed to the existing prison building programme, and that if anyone was proposing building prisons beyond existing plans they would need to explain what other part of public spending they would be taking the budget from. He agreed with Angela Constance (SNP) who said that speculation about a possible early opening date for HMP Addiwell had caused unnecessary worry and distress amongst her constituents, in whose area the new prison is located. He disagreed with an intervention from Bill Aitken, who also argued for an extension to existing facilities in Kilmarnock as a way of relieving overcrowding, saying that expanding this provision would be ‘limited and extremely costly’ He also chided the Conservative spokesperson for his suggestion of converting a Royal Air Force base for use as a temporary prison, saying that such ideas ‘might have worked in a second world war movie, but it will not work in 21st century Scotland.’

Kirkwall Sheriff Court

There was a question from Liam Arthur (LD) about the sheriff court in his constituency in Kirkwall, Orkney. He said that it is inadequate with regards to access and space, and he urged the Cabinet Secretary to ask the Scottish Court Service to provide information about a possible replacement. Mr MacAskill replied that this court has undergone numerous renovations and continues to serve its purpose, and that although a different building could possibly be provided at great cost, he believed that the Scottish Court Service is taking the appropriate action given the current volume of the court users.

Summary Justice Reforms

Next there was a question from Gavin Brown (Con) about whether the Government had any plans to monitor and analyse the effectiveness of the summary justice reforms, in light of the fact that in the first three months of the reforms, from April to June this year, the number of people who received a direct measure for a charge of assault had doubled. The Cabinet Secretary replied that there was a ‘comprehensive programme of detailed monitoring and evaluation’ in place to monitor these reforms, but that early reports so far revealed a large number of cases were ‘resolved early’, which meant that a large number of witnesses and police officers did not have to disrupt their work to attend trials. He said that the offence of ‘assault’ was broad and encompassed relatively minor crimes such as breach of the peace, which would be eligible for such measures, but that serious assaults would continue to be dealt with by means other than direct measures.

Voluntary Sector Cuts to Criminal Justice Services

There was a question from Mary Mulligan (Lab) who wanted to know how the Government wished to implement an increase in alternatives to custody as proposed in the Prisons Commission’s report, in light of the fact that organisations such as SACRO who deliver many of these programmes, are experiencing cuts to their budget resulting in a withdrawal of services. The Cabinet Secretary replied that he was unaware of any such cuts, and he said that the Government is delivering significant funding to support the head office operations of Apex Scotland, Sacro, Families Outside and Action for Children Scotland, and they are are also providing ring–fenced funding to the community justice authorities

Sexual History Questioning During Rape Trials

Finally, there was a question for the Lord Advocate, Elish Angiolini, about what action is being taken to prevent the ‘intrusive and humiliating questioning’ of women during rape trials. Malcolm Chisholm (Lab) said that recent evidence showed that this sort of questioning had in fact increased, and he argued that is must stop given the considerable distress it causes to women in this situation. The Lord Advocate replied that it was the responsibility of everyone working in the justice system to play their part in ensuring that the law is made to work to protect victims from unnecessary questioning about their sexual history and the right of the accused to a fair trial. However, she said that unfortunately, there could be no complete bar on questioning of sexual history and character, because there was a need to ensure the rights of the accused to a fair trial were met, along with the rights of the victim, and that it was ultimately up to the judge in the case to decide whether an issue is specific to the trial or not.

You can read all these questions in the Official Report, and you can also watch them on Holyrood.TV

Written Questions

There were a range of questions relating to alcohol, including the amount of money spent on alcohol referral services for children and young people, the number of off-licences that have been caught selling alcohol to people under 18, and the number of licences tested as part of the test purchasing scheme. There were more questions about alcohol, this time in relation to health services and young people, and a question about alcohol referral schemes, and a final set of questions relating to alcohol, relating to Licensing Boards and young people and alcohol. There was a question about the recording categories used in the Child Protection Statistics document, about where the additional money promised to implement Community Service Orders will be spent, and about the varying roles of community wardens throughout Scotland. There was a question about staffing at the Crown Office and Procurator Fiscal Service , and about the national cost of methadone treatment (see also CJScotland newsblog 17.11.08). There was a question about the number of air weapon offences recorded in the last five years. There were a number of questions about prisoners, about minimum requirements for police recruits, and about medical services for people in police custody . There was a question which asked what the operational maximum of the prison population would be before an emergency release was required, a question which revealed the way that money from the Proceeds of Crime Act has been spent. There was a question about the number of wildlife crime officers in Scotland, and finally, about what is being done to address youth violence in the east end of Glasgow

Posted by KM on Tue 18th Nov 2008 at 1:45 am
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