After section 61

Criminal Justice (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:00 am on 20th February 2003.

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Amendment 74 moved—[Dennis Canavan].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 74 be agreed to. Are we agreed?

Members:

No.

Division number 7

For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Paterson, Mr Gil, Robison, Shona, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew
Against: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Gorrie, Donald, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McIntosh, Mrs Lyndsay, McLeish, Henry, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Tosh, Mr Murray, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan
Abstentions: McAllion, Mr John

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 30, Against 69, Abstentions 1.

Amendment 74 disagreed to.

Photo of Paul Martin Paul Martin Labour 10:15 am, 20th February 2003

Amendment 75 refers to assaults on emergency personnel. Parliament passed the Protection of Wild Mammals (Scotland) Bill to protect our wildlife and we will deal later with a section of the Criminal Justice (Scotland) Bill that is also about protecting wildlife. I want to give effect to the public's opinion that Parliament should ensure that we also protect those who deliver a public service in our community from people who attack them. There is no more repulsive act than that of people attacking firefighters or paramedics who are trying to save lives. That is the theme of amendment 75.

During stage 2, I lodged an amendment that was equivalent to amendment 75. The minister advised me that he had difficulties with that amendment because it did not embrace all our public service personnel. If the Executive and the Lord Advocate are not willing to accept amendment 75, I seek two assurances from them: first, that whatever legislation is introduced will deal strictly and robustly with those who attack public service personnel and that the attackers will feel the full weight of the law; and, secondly, that the legislation will be carefully monitored to ensure that it is effective.

I move amendment 75.

Photo of Bill Aitken Bill Aitken Conservative

I will deal first with amendment 75. Assaults on emergency services personnel cannot and should not be tolerated. I have little doubt that Paul Martin lodged amendment 75 because of painful and unpleasant experiences in his constituency. It is deplorable that firefighters and others who carry out their duties in conditions that are often extremely dangerous should have that level of danger increased by the actions of the irresponsible and the downright wicked.

We see considerable merit in amendment 75. I draw members' attention to the fact that, under the Police (Scotland) Act 1967, assaults on police officers can be dealt with on the basis that Paul Martin suggests. Amendment 75 simply seeks to extend such protection to others who carry out similarly valuable public services. Indeed, it could be argued that emergency ambulance crews, for example, are less equipped to deal with violent behaviour than are trained police officers. We acknowledge that there is a danger in specifying those who would be entitled to the additional protection that amendment 75 proposes.

Nevertheless, we think that amendment 75 is worth while and we will support it.

Amendment 76 also deals with the protection of police officers. It is unfortunate but true that many of those who commit crimes are drug abusers who inject, and that with such habits goes the problem of HIV and other infections, which frequently cause tragic results. If a police officer is assaulted by being scratched, bitten or spat on, it is possible that they will be infected with HIV. Medical testing takes time and would normally need to be done on at least two separate occasions over three to four months in order to assure an assaulted officer and his or her family that any virus present in the arrested person who assaulted the officer had not been transmitted.

It is not too difficult to imagine the degree of concern that must be felt during such an interval. Amendment 76 seeks to allay that concern by requiring an arrested person to provide an appropriate sample on arrest. It is obvious that that would not resolve the problem in every case but if an accused person were to test negative, it is clear that that problem would immediately be resolved. It might be argued that if an arrested person were to test positive for a virus, it might make the situation more worrying for an assaulted officer. However, it is important that people should know as early as possible exactly what the situation is.

Amendment 76 would provide considerable reassurance to police officers and their families, and I commend it to members.

Photo of Karen Gillon Karen Gillon Labour

I support the intention behind amendment 75, which is in the name of my colleague, Paul Martin. Last September, following brutal and unprovoked attacks on fire service personnel who were on their way to save lives, I instigated a members' business debate on the issue, which was supported by a large number of members across the parties. Paramedics and ambulance personnel also face the threat of violence in the line of duty.

I support the intention behind amendment 75, but I think that there is scope for further work to be done in relation to other emergency service personnel, particularly those who work in accident and emergency departments. Day in and day out, they face the threat of violence in a way that many of us find abhorrent. We cannot understand why such violence happens. I seek assurances from the Lord Advocate, if he is to respond to the debate, that the Executive will move forward on the issue and will take a clear and unequivocal stance in relation to attacks on emergency service personnel, who provide public services. Such attacks cannot and will not be tolerated in a modern Scotland. I also ask him to clarify why a provision exists to protect the police, whereas there is no equivalent provision for other emergency service personnel.

As I have some sympathy with Bill Aitken's amendment, I ask the Lord Advocate to clarify exactly what the Executive's position is on the matter that it deals with. If anyone else required a sample to be provided to let them find out whether they were in danger of contracting a life-threatening illness or disease, that would naturally happen, but police staff seem unable to receive that support. It is vital that the police get the reassurance and comfort that a sample would give them. They should be able to have the tests that would reassure them that their lives are not in danger and that would ensure that they do not have to live with unjustified worry.

Photo of Phil Gallie Phil Gallie Conservative

I welcome the support that Karen Gillon has given to Bill Aitken's amendment 76. On many occasions in this chamber, the Lord Advocate has been extremely reasonable, but I hope that we do not hear only assurances from him today. I would like him to go further and support amendment 76.

The Public Petitions Committee received a petition on the topic that Bill Aitken's amendment deals with. It highlighted a case in which a policeman whose wife was expecting a child had been attacked in such a way. The weight on his mind and his wife's mind was horrendous and the case resulted in some fairly tragic circumstances. That example received the sympathy of every member who heard the presentation at the Public Petitions Committee meeting. On the basis of that evidence alone, Bill Aitken's amendment would be well worth accepting.

We expect much from our police officers. They are on the front line and protect the weak in society from the strong. In so doing, I believe that they should expect whatever protection we can give them, providing it is not unfair. Bill Aitken's amendment is not unfair to anybody. When a criminal is convicted of a crime, he expects and receives from our custodial system a recognition of his welfare and well-being. Further, he is treated by the prison service in a way that involves every possible method of bringing about rehabilitation and a change of attitude, and his human rights are looked after. However, the policeman who has been left with a massive question mark over his health after an incident in which blood contamination might have taken place will get no such protection if we ignore Bill Aitken's amendment today.

I plead with every member in this chamber to support Bill Aitken's extremely reasonable amendment. This is not a political issue; it is an issue that involves our support for our policemen.

I have no difficulty with amendment 75. Paul Martin made a good case and put his amendment well. His amendment also deserves the support of the chamber.

Photo of Margaret Smith Margaret Smith Liberal Democrat

I support amendment 75. I have previously lodged motions and amendments on the same subject. The members' business debate that Karen Gillon secured on the subject of attacks on fire crews was well attended. It is important that this chamber sends out the message that we should give the best possible protection to fire crews, paramedics and other members of the emergency services when they are doing their jobs on our behalf.

I would particularly like to highlight an issue that Karen Gillon touched on: the situation in our accident and emergency centres on Friday and Saturday nights. The way in which our health service workers are being treated is unacceptable. If we do not accept Paul Martin's amendment, I seek clear assurances from the Lord Advocate and the Executive that they will pursue the matter and quickly come back to Parliament with proposals for a way forward. However, I believe that we really ought to accept amendment 75.

Photo of Brian Fitzpatrick Brian Fitzpatrick Labour

I suspect that members across the chamber will have considerable sympathy with amendment 76, with the intention behind Douglas Keil's petition, PE482, and with Constable Pratt's predicament, which Phil Gallie mentioned. I pay tribute to the work that Constable Pratt does in the constabulary in my constituency.

I hope that the Executive responds to the policy intention behind, rather than the wording of, amendment 76. It is so widely drafted that it includes not only the police constable's assailant but "another person", who could be the victim or any other person in the area. I hope that the minister will address both that issue and the problem that arises from the use of the word, "subsequently", the interpretation of which is simply too wide.

I urge ministers to consider the despicable situation that a number of police officers face when people deliberately cut themselves and threaten police officers with infection. Such situations are made worse when, as part of some exquisite playing-out of bravado, they suggest that they will not assist the police officer, or they heckle or threaten the police officer who is simply performing his duties on behalf of us all. That cannot be tolerated and I hope that ministers will produce a positive policy resolution that will address a problem that will not go away.

Photo of Pauline McNeill Pauline McNeill Labour

Amendment 75 deals with an important matter. Trade unions have long complained about attacks on their members—nurses, midwives, those who work in accident and emergency services and so on—not being taken seriously. One of the reasons for that is that such attacks are not always reported. I am pretty sure that the Executive will tell us that it is taking the matter seriously and recognises the need for a campaign to make people realise that any attack on a national health service worker is a crime and should be reported. I am sure that such attacks will be properly dealt with by our prosecution system.

I also have sympathy with amendment 76. However, it will suffer from the fact that we have had only a few days in which to consider it. If the amendment falls, it is not unreasonable to ask the Executive for a commitment that it will give Parliament a chance to examine the issue. Perhaps a parliamentary committee could spend some time examining what happens to police officers on our streets. I think that there must be some protection in that regard and I welcome Bill Aitken's contribution to the debate.

Photo of Pauline McNeill Pauline McNeill Labour

I had finished speaking, but I will allow Mr Gallie to speak.

Photo of Phil Gallie Phil Gallie Conservative

In that case, I doubly thank Pauline McNeill.

I put it to her that the issue that amendment 76 deals with is an important one for this Parliament to deal with in its last few days. Does she agree that it would be better for this Parliament not to pass the buck to future parliamentarians but to take the opportunity to deal with the issues in the amendment today, if the Lord Advocate can be persuaded that his comments will be sufficient to guard against the difficulties that Brian Fitzpatrick warned us of?

Photo of Pauline McNeill Pauline McNeill Labour

It is because I believe the proposal is worthy of detailed examination and must be got right that I believe it would be wrong to agree to the amendment today. The reason why I chose to speak on the issue—I am sure that it is also Brian Fitzpatrick's reason—is that I do not want us to lose sight of the fact that work has to be done on the issue.

We must ensure that we use the committee system to give the proposal the scrutiny that we would give to any piece of legislation. It would be wrong to take the view that, because we agree with the principle behind the amendment, we should simply agree to it today.

The Lord Advocate (Colin Boyd):

I will respond to amendment 75; Hugh Henry will respond to Bill Aitken's amendment 76.

Paul Martin has raised an important issue. Every day, members of our emergency services face dangerous situations and they should be able to carry out their duties in the knowledge that they will be protected against assault or obstruction. Anybody who assaults a firefighter while he is putting out a fire clearly puts the public, as well as firefighters and other emergency personnel, in danger.

Of course, not only firefighters but other public service workers require the full protection of the law. Karen Gillon referred to ambulance personnel, hospital doctors and nurses in accident and emergency clinics, and I have received representations on behalf of transport workers such as bus and train drivers. They all provide a service to the public and, because of that service, put themselves at varying degrees of risk of assault, such as the police officer who makes the arrest, the firefighter who fights the fire or the bus driver on the night bus.

Amendment 75 seeks to ensure that the criminal law fully protects members of our emergency services against attack. I agree with the motivation behind the amendment. Laws that allow prosecution for the obstruction or assault of emergency workers are, of course, already in place. Section 30(2) of the Fire Services Act 1947 states:

"Any person who wilfully obstructs or interferes with any member of a fire brigade ... who is engaged in operations for fire-fighting purposes shall be liable on summary conviction to a fine not exceeding" level three on the standard scale. In addition, a person may be prosecuted for vandalism under section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995, which provides stiffer penalties. There is also the common-law offence of malicious mischief.

The common law on assault applies to everybody and provides protection from attack, including actual or threatened assault. The maximum sentence for assault when prosecuted on indictment is life imprisonment. The common law's flexibility allows it to respond to assaults on, and other unacceptable behaviour towards, members of the emergency services as well as others, whatever the circumstance.

One of the most tragic cases that I prosecuted as an advocate depute was that of two teenagers who placed concrete troughing lids on a railway, causing a train to derail and hit a bridge and killing a driver and a passenger. Those teenagers were prosecuted for murder, convicted by the jury of culpable homicide and sentenced to 15 years detention.

I mention that case, although it is not directly in point to Paul Martin's amendment 75, to demonstrate that that action resulted in the death not only of a public service worker but of a member of the public. The case illustrates just how seriously my department and the courts view such behaviour and how the common law's flexibility is used in practice.

However, I am alert to the degree of public concern regarding attacks on public service workers. That is why I have arranged for guidance to be issued to all procurators fiscal instructing that reports of incidents that involve attacks on public service workers—including firefighters, ambulance paramedics, doctors, nurses and transport workers—are to be dealt with seriously. The location of the incident and the fact that the workers are providing a service to the public will be aggravating factors that procurators fiscal will take into account when they deal with such cases. Those factors will influence the choice of court where such offenders may be tried so that, if convicted, the courts can sentence them appropriately. I am in no doubt that that guidance will ensure that reports of attacks on public service workers will be investigated thoroughly and treated with appropriate severity in the existing system. The criminal justice system needs to provide a tough response to members of our society who seek to disrupt people who provide valuable services to the public.

On monitoring, I assure Paul Martin on two counts. The Procurator Fiscal Service will monitor the use of the guidance, and I can also advise him that Her Majesty's fire service inspectorate for Scotland recently conducted a survey of assaults on officers. Between 1 January and 30 June 2002, fire brigades recorded a total of 94 attacks. Seventy-nine were in Strathclyde and 12 were in Lothian and Borders. Twenty-nine of the attacks were verbal and 53 involved missile throwing. Twelve attacks were classed as physical, all of which took place in the Strathclyde area. As a result of that work, the inspectorate has decided to monitor attacks on firefighters as part of the annual statistical return. The Executive will work with the inspectorate to ensure that the monitoring is able to track incidents of assault and find out whether the existing law provides a satisfactory response.

I do not believe that there is a proven need for legislation at this stage. However, we must, of course, keep the matter under review. I am in no doubt that if the law is seen to be deficient—either through the monitoring that I have mentioned or by others who observe such matters—in protecting public service workers, a future Executive and Parliament will revisit it. In so doing, the Parliament would have to consider in detail the various laws that are already in place to protect public service workers. It would also have to produce a considered and robust response to an issue that we all agree to be important.

I therefore invite Paul Martin to withdraw amendment 75.

Photo of Hugh Henry Hugh Henry Labour

Bill Aitken suggested in his speech that the offence that he proposes in amendment 76 would apply when a person is arrested. In fact, if members read amendment 76, they will see that that is not the case. It would apply when anyone, including an innocent accident victim, comes into contact with a constable.

No member would disagree with the sentiments behind amendment 76. The issue is important, and there are well-documented cases of officers being bitten or spat at by offenders who may be drug users carrying infection. We would all agree that, in such circumstances, it is perfectly reasonable for an officer to want to know whether they have been exposed to HIV or some other infectious disease. The Scottish Police Federation has already raised the issue with the Executive and the Parliament's Public Petitions Committee.

The Executive's position on the issue is clear: we have indicated that we believe that the Scottish Police Federation has a case. However, the solution is not as simple as Bill Aitken and Phil Gallie suggest. Before we commit to legislating, a number of questions need to be answered. What is the nature of the blood test that could be carried out? Who would carry it out and would there be limits on the types of blood infection for which they could test? What would happen to the information after it had been collected—must it be destroyed or could it be retained?

Photo of Phil Gallie Phil Gallie Conservative

I agree that those matters must be defined. However, on many occasions, similar questions could have been asked about other amendments, including Executive amendments. The point of detail is not contained in the bill. I suggest that background work must be undertaken and a formula set up, but that that should not stop him accepting the principle that is outlined in amendment 76, as he has done on other issues.

Photo of Hugh Henry Hugh Henry Labour

I disagree. Particular anomalies could arise and particular mistakes could be made if the amendment was accepted as drafted.

Should protection extend to civilian members of police forces, such as turnkeys or traffic wardens, who come into contact with the public? Should everyone be compelled to submit to a blood test? Should that include suspects who have not been charged? What about innocent parties, such as victims, who may have been injured in an attack or a road accident? One of the fundamental problems with the amendment is that it talks about people who "come into contact" with the police; it is not necessarily about those who are arrested.

Photo of Brian Fitzpatrick Brian Fitzpatrick Labour

I have concerns that amendment 76 is, to be blunt, badly drafted and too wide. We should not make bad law. However, that should not be the end of the matter. I hope that the minister, without binding our successors in any form—I suspect that he will be back on the front bench in the not-too-distant future—will be able to say that progress will be made on the issue, because it will not go away; Labour members will not let it.

Photo of Hugh Henry Hugh Henry Labour

Brian Fitzpatrick is right. The concerns that he has articulated about the problems that confront police officers are well documented, and there is huge sympathy for those concerns. I give Brian Fitzpatrick the assurance that something needs to be done—I think that I speak for everyone across all parties on that. Indeed, something should be done.

Let me return to the situation in which we would find ourselves if we were to agree to Bill Aitken's amendment 76. Phil Gallie may describe it as a reasonable amendment, but it is a reasonable amendment that could have grave implications. People can cut themselves, perhaps because of falling on ice, as the First Minister recently did at Bute House, because they have tripped or because they have been mugged. If a police officer were to come to the assistance of someone who had cut themselves in that way, then amendment 76 would apply to them, even if they have no criminal convictions, have not been involved in any crime and have done nothing wrong. Under the terms of the amendment, if such a person did not give a blood sample, which may be recorded on a national database, they could be charged. That cannot be right, yet those terms would apply if amendment 76 were agreed to.

I assure the Parliament that we take the matter seriously, but we want to clarify the questions involved before we move to legislate. We have told the Public Petitions Committee that we intend to consult publicly on the matter, and the consultation paper will be issued in March. I give Brian Fitzpatrick, Bill Aitken, Pauline McNeill, Phil Gallie and anyone else with concerns the assurance that we intend to act. However, we need to ensure that we get it right and, unfortunately, Bill Aitken's amendment would not do that. I hope that he will not move the amendment, on the understanding that the Executive will be taking action on the issue.

Photo of Paul Martin Paul Martin Labour

I intend to withdraw amendment 75, based on two factors. The first is that there will be a proactive approach to sentencing policy, and I welcome the guidance from the Lord Advocate on that. The second is that that policy will embrace all public sector workers, as discussed by the Lord Advocate and Karen Gillon. I have been receiving representations on that point from senior union officials at Unison and the GMB. They called for an amendment, but said that they would rather there were measures embracing all public sector workers who might be attacked while carrying out their duties.

I thank the Lord Advocate for responding to the issue in a positive manner, and I look forward to measures being implemented. I will, however, revisit the matter in the form of a member's bill if those measures do not prove effective during the period that the Lord Advocate set out.

Photo of George Reid George Reid Scottish National Party

Paul Martin indicated that he wishes to withdraw amendment 75. Is that agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

In that case, the question is, that amendment 75 be agreed to. Are we agreed?

Members:

No.

Division number 8

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McIntosh, Mrs Lyndsay, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Paterson, Mr Gil, Robison, Shona, Scanlon, Mary, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Tosh, Mr Murray, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Fitzpatrick, Brian, Gillon, Karen, Gorrie, Donald, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McLeish, Henry, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, Morrison, Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 38, Against 59, Abstentions 0.

Amendment 75 disagreed to.

Amendment 76 moved—[Bill Aitken].

Members:

No.

Division number 9

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McIntosh, Mrs Lyndsay, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Paterson, Mr Gil, Robison, Shona, Scanlon, Mary, Stevenson, Stewart, Sturgeon, Nicola, Tosh, Mr Murray, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Fitzpatrick, Brian, Gillon, Karen, Gorrie, Donald, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McLeish, Henry, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, Morrison, Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 36, Against 60, Abstentions 0.

Amendment 76 disagreed to.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Amendment 108 concerns an important issue of principle, and I welcome the opportunity to raise the matter in Parliament in the context of the Criminal Justice (Scotland) Bill.

It is in the public interest that crimes are reported. We would all accept that it is a civic duty that, when any of us becomes aware of a suspected crime having been committed, we report it to the police—we do not keep quiet about it, but act in accordance with that civic duty. As far as I understand, however, there is not a general legal duty to do so. There is no legal duty, backed by criminal sanctions, for any of us to report crimes generally.

There are specific circumstances in which it is a crime to fail to report a crime that one sees being committed. For example, I believe that it is a crime to fail to report a road accident in which somebody has been injured. There are specific categories of suspected crime for which the state recognises that it is so much in the public interest to report them that failure to do so is in itself a crime.

I believe that we should act as good Samaritans, and amendment 108 would introduce a duty so to do in respect of public authorities. We know that there are many reasons why individuals will not report crime. For example, there is often widespread intimidation and fear in communities in which drug dealing goes on. That is an extremely serious problem. However, there is also a problem when crime is committed in public authorities and institutions. There are many reasons for such crimes not being reported, because a public body might not wish to launder its dirty linen in public. In crimes of dishonesty, theft, fraud or the like that have been committed in the workplace or in a public body—perhaps involving documents relating to particular employees—there are many reasons for the employer not wishing the circumstances of that crime to become known and to come under the public gaze. An institution may well seek to avoid the bad, or any, publicity that would accrue if such matters were reported to the police.

Photo of Karen Gillon Karen Gillon Labour

I understand some of the points that Fergus Ewing makes, but is he seriously proposing that, if a janitor at a local community centre does not report a suspected crime because of fear for his own life or fear for his family, he will become the criminal?

Photo of Fergus Ewing Fergus Ewing Scottish National Party

No, it is not. The body, not the individual, would be committing the crime. The duty would be imposed on the public body rather than on the individual.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

No—I have dealt with it.

I lodged amendment 108 in the light of the case of a constituent who had a particularly difficult experience. It is not appropriate that I rehearse the circumstances of his case now, although I believe that the minister is aware of them. I am aware of the adage that hard cases make bad law, and I subscribe to that. In any case, my constituent wished me to raise the general principle that it is in the public interest that, when a crime is committed in a public institution, that crime should not go unreported. I would very much welcome the minister's response on that general principle.

I am aware that the provisions of amendment 108 are extremely wide, and that it may be appropriate for further detailed consideration to be given to the principle before it is incorporated into the law of Scotland. I would like the minister to indicate whether he accepts that there is a problem that needs to be addressed. From the correspondence that I have had with him, I understand that he accepts that. However, he may not accept that it would be appropriate to create a criminal offence along the lines that I have suggested. If the minister accepts that there is a general problem that we need to address—as I believe he does—would he consider inviting the Scottish Law Commission to consider the matter further, with a view to publishing a consultation paper on it? If the minister will give the undertaking that the matter will be considered on that or any other reasonable basis, I will not press the amendment to a vote.

I move amendment 108.

Photo of George Reid George Reid Scottish National Party

I remind members to keep their speeches short. If they do not, there will not be time to debate other amendments.

Photo of Bill Aitken Bill Aitken Conservative

My initial view was that amendment 108 was self-evident. Clearly, it is the duty of all of us—either as individuals or as members of a corporate body—to report crime when it happens. There should be no need for an amendment of this type. I am not privy to the information that Fergus Ewing and the minister have about the specific case that Fergus Ewing mentioned, but I accept that there has been a problem.

If a local authority housing department is aware that drugs are being supplied in an area such as a tenement close, that should be reported. I imagine that local authorities have sometimes felt inhibited from doing that.

Amendment 108 is interesting. It should be taken further, but I am not entirely convinced that by agreeing to the amendment today we would get very far. For that reason, we cannot support the amendment at this stage.

Photo of Karen Gillon Karen Gillon Labour

I have serious concerns about amendment 108, especially the wording of subsection (3) of the new section that it would insert in the bill. That subsection contradicts what Mr Ewing said. It states:

"Where an offence under this section is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) an employee ... that person, as well as the authority, shall be guilty of the offence and liable to be proceeded against and punished accordingly."

I have serious concerns about that. If we agreed to amendment 108, we would be telling the most low-paid, vulnerable employees in the public sector that they were responsible for reporting crimes in their community, even if their lives were threatened as a result and they were receiving no support from their management or the local police service. We would be telling them that they would become criminals if they failed to report offences. Unless we back up the amendment with far more effective policing in local communities than is available at present, I am not prepared to put those people in that position. For that reason alone, I will not support the amendment.

Photo of Jim Wallace Jim Wallace Liberal Democrat

As has been indicated, amendment 108 would have the effect of introducing a new criminal offence where it is shown that, without reasonable excuse, a public authority fails to report to the police that an employee or member of the authority may have committed a suspected offence on the premises. As Karen Gillon rightly pointed out, subsection (3) of the amendment could also catch employees.

The scope of the proposed duty and new offence would be wide, although the amendment does not indicate what would be specified as a relevant offence. That decision would be left entirely to ministers. There is already an obligation to report certain offences. In the case of money laundering, the extent of that duty is set out in detail in statute. Under the Misuse of Drugs Act 1971, it is an offence for the management of any premises knowingly to permit the production or supply of drugs on those premises. An employer who knew that drugs were being produced or supplied would be obliged to inform the police of that. That is a very specific provision.

Karen Gillon made it clear that under the amendment any employee, as well as the authority, could be found guilty if it were proven that the duty had been breached with their consent or connivance or because of neglect attributable to them.

Fergus Ewing was right to say that we have corresponded on this issue. I am not at all dismissive of the intention behind the amendment, and it would be unacceptable if public authorities failed to report incidents to the police to avoid bad publicity or if they feared that reporting such incidents might have an effect on their funding assessments. However, I am not persuaded that a statutory duty and a new criminal offence to enforce that are either necessary or likely to be effective.

It is not in a public authority's interests to allow crime to fester on its premises. However, it is unlikely that a prosecution would result from failure to report a suspected crime if the original crime were not reported. Indeed, it would be very difficult for the Crown to prove that someone had not reported a crime or suspected crime, as the procurator fiscal would have to prove that there were circumstances giving rise to suspicion and that the employer knew of those circumstances. An employee who is currently unwilling to report the original incidents to the police would hardly be prepared to report the breach of a statutory duty, as that would involve reporting the employer or responsible officer, rather than the individual suspected of the criminal behaviour.

It is important to make it clear that, regardless of the attitude of public agencies, there is nothing to prevent an employee or other person from making a complaint about a suspected criminal offence to a professional body, the police or the procurator fiscal. The Public Interest Disclosure Act 1998 provides protection for individuals who make certain disclosures of information in the public interest. That includes the disclosure of information that, in the reasonable belief of the worker making the disclosure, tends to show inter alia that a criminal offence has been committed, is being committed or is likely to be committed.

I understand fully what lies behind amendment 108, but I fear that it could lead to complications greater than those that it is intended to resolve. For example, an employee may be the subject of malicious accusations. If the public authority got wind of those accusations, it might feel that it was safest to report them, to ensure that at a later stage it would not be found culpable of failing to do so. That could put the employee concerned under considerable pressure. In the absence of a statutory duty to report an accusation, the employer can conduct an internal investigation, offer appropriate support to staff and resolve matters internally.

The onus to report a crime normally rests with the victim, rather than the victim's employer. I hope that an employer would not act unreasonably in refusing to report a matter to the police. That is an important point, but I do not believe that the case has been made for the kind of legislation that Fergus Ewing proposes.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I acknowledge that much that the minister says is correct in a general sense. I believe that there is still a serious problem that has not been addressed, but it would not be appropriate to press the matter to a vote without giving it further consideration.

Amendment 108, by agreement, withdrawn.