Victims' Rights

– in the Scottish Parliament at 5:00 pm on 15th September 2005.

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Photo of Trish Godman Trish Godman Labour 5:00 pm, 15th September 2005

The final item of business is a members' business debate on motion S2M-3171, in the name of Margaret Jamieson, on victims' rights. The debate will be concluded without any question being put.

Motion debated,

That the Parliament notes recent court decisions which put the human rights of prisoners before those of their victims by ignoring the rights of victims to pursue their assailant for damages when compensation is awarded and believes that the Scottish Executive should pursue all avenues to ensure that no convicted criminal has the opportunity to gain financially from their crimes or imprisonment and that victims should be advised of awards of compensation, inheritance or other financial gain.

Photo of Margaret Jamieson Margaret Jamieson Labour 5:08 pm, 15th September 2005

Last week the First Minister spoke in the chamber of justice and respect for Scotland and for the people of Scotland. I, like others, totally agree with him. Victims of crime would also agree with him and ask how those aims can be achieved by the Scottish Executive.

Take the circumstances of the victims of Robert Napier. He was convicted in 2001 and sentenced to six years for robbing and assaulting Margaret Zambonini and her assistant Jemma Carlton, who was then aged 15. Some would say that that is justice. However, Napier went on to complain that his rights had been violated as he had had to slop out while he was in prison on remand. Unfortunately for us—the custodians of the public purse—the gravy train swung into motion and the public purse was asked to fund his case for compensation.

Meanwhile, his victims, who had been terrorised by the knife-wielding criminal for over an hour, sought criminal injuries compensation. Napier and his legal team, who were, again, paid from the public purse, claimed that he had been suffering from eczema caused by the overcrowding, the slopping out and his spending 20 hours a day locked in a cell while on remand. His victims received criminal injuries compensation for his actions. Napier, who was convicted of a deliberate act, was awarded compensation of £2,450 by Lord Bonomy for the impact of slopping out.

Members would be right to ask where the justice is in that, hence the debate tonight. The case and its ramifications were raised with me by constituents of Kilmarnock and Loudon during the summer recess. They rightly saw the public purse as having been manipulated by convicted criminals. I take this opportunity to thank Lindsay Mcgarvie, political editor of the Sunday Mail, for assisting me in highlighting the injustice that has been afforded to victims of crime.

The floodgates have now been opened by those who see the opportunity to profit from their crimes, with us paying for it all. I have attempted to obtain information on the number of people who are pursuing the Scottish Executive in a similar vein. Unfortunately, the Executive requires more time to deal with my request fully. Had that information been available, I believe that the extent of the injustice to victims would have had an impact on the number of members attending the debate. That said, we now have an opportunity to rebalance the rights of victims of crime.

It is unfortunate that Stewart Stevenson is not here now. I welcome his statement last week in which he called for ring fencing of moneys in prisoners' bank accounts to give victims the opportunity to take action. I am sorry that he did not see merit in signing the motion for this debate, which takes the issue further.

A victim's right to sue a person who has been convicted of committing a crime against them and who subsequently derives financial benefit from whatever means should be at the top of our agenda. That financial gain could come from compensation, inheritance or even a lottery win. The retired judge, Lord McCluskey, agrees that those who inflict damage and end up with assets can and should have those assets seized.

No impediment to that right should come in the way of victims. Victims of crime should not be subject to time bars in pursuit of their assailants. Local authorities have no time bar in pursuing individuals for non-payment of council tax, so why should victims of crime be treated differently? There should be a condition that the convicted person is required to advise the court of their financial circumstances, thus giving the victim the opportunity to claim redress and the state the opportunity to reclaim payment.

In the coming weeks, we have an opportunity to demonstrate that we are on the side of victims of crime, when stage 2 of the Management of Offenders etc (Scotland) Bill commences. That bill will provide a power to recover money from offenders for the Criminal Injuries Compensation Authority.

Victims such as Jemma, who is in the gallery tonight, who was unable to continue her studies because the trauma of the trial and reliving the harrowing events of the crime affected her ability to go back to school and sit her exams, should have their rights protected. Why should not Jemma, as a victim of crime, be given equal treatment in respect of compensation? Why should not she be afforded the opportunity to pursue her assailant when he comes into funds?

Those are the questions that we must address if we believe in justice and respect for all in Scotland.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 5:15 pm, 15th September 2005

As is traditional, I congratulate Margaret Jamieson on lodging a motion on an important issue that has to be addressed. I assure her that my colleague Stewart Stevenson supports the motion. I think that his failure to sign it was down to an administrative error rather a failure to support the principle.

Margaret Jamieson has rightly raised matters that we have all taken for granted. There are two aspects to the debate: the general issue of victims' rights and the specific issue of the outcome of the on-going slopping out cases. It is to the Executive's credit that the general issue is being addressed by both the Minister for Justice and the Solicitor General for Scotland. However, the attitude that permeated not just political parties but the whole legal system was that victims were at best an inconvenience and at worst rated no higher than any other aspect of the evidence gathered; they were there simply as part of the process. Sheriffs, in hearing cases, were doing everyone a favour, as opposed to having their wages paid by the taxpayer—including, in many instances, the victims themselves. We need an attitudinal change in this country and to recognise that victims have rights and that they have suffered. That has to be taken into account.

I turn to an aspect of the debate that Margaret Jamieson raised. I, too, read the recent article by Lord McCluskey, and I agree with him whole-heartedly. All of us in this chamber, from all political parties, sign up to the belief that there has to be an acceptance of the principles of the European convention on human rights, which is enshrined in legislation. However, what is happening is not what we anticipated. Like many people, such as Lord McCluskey in particular, for whom I have the utmost respect, I am bamboozled about just how we got into the mess that we are in. Of course prisoners have rights. Nobody is arguing that they should be given a diet of bread and water or that they should be detained in leg irons; they have to be treated with dignity and respect.

Photo of Patrick Harvie Patrick Harvie Green

Will the member confirm that he regards slopping out as a violation of prisoners' human rights?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Slopping out is regrettable; I do not think that it should happen. However, I disagree with where Patrick Harvie is coming from and sympathise with Margaret Jamieson's position. I think that the amount of compensation that has been awarded is scandalous, given that, without going into the rights and wrongs of regeneration, urban blight and poverty, we accept that one in four children live in poverty and that people live in damp housing. Many people cannot understand how all of us, as members elected to look after their interests, manage to give a substantial award of money to the likes of Mr Napier when they face problems through our failings. We can decide whether to cast the blame on a Tory Government or the Executive, but there is something manifestly wrong in our society when Mr Napier benefits to the extent that he has and yet we fail to address the problems of those who are poor, dispossessed or disenfranchised or who live in bad housing.

The issue is not simply the amount of money that has been or is going to be awarded to prisoners, but the cost. Despite the amount of money that has been spent on the legal aid bill, women who have been battered as a result of domestic violence suffer from not having access to legal aid. There is something wrong in our society; the situation is simply unacceptable.

Of course Mr Napier has rights; of course in the 21st century we do not want prisoners to slop out. That should not happen, but, having weighed up the situation on the scales of justice, which is what we have to do, I would much rather see the money go towards repairing damp housing in Scotland than into the pockets of Mr Napier. He should perhaps not have had to expect to slop out, but the amount of money that he was awarded, which astounded Lord McCluskey, baffles Margaret Jamieson and confounds me, shows that there is something far wrong.

Yes, we want prisoners to have rights, but we have always to remember that in our society communities also have rights. Frankly, this chamber has got something wrong and out of kilter when the rights of an individual who has transgressed weigh far more than the rights of a community that has to suffer. We have to take action and ensure that the victims have the right to access that money, which, frankly, should not have gone to prisoners in the first place. We must ensure that we end slopping out but we must not reward those who do not merit it, which baffles ordinary people in Scotland.

Photo of Patrick Harvie Patrick Harvie Green 5:21 pm, 15th September 2005

This debate raises strong feelings that I am sure are genuine. However, it is with deep regret that I must say that at times it seems to have become not just difficult but almost unacceptable to suggest that prisoners have human rights, that their human rights should be defended and that the violation of their human rights should not be tolerated. In this debate, that is my position. I make that case with mixed feelings following an event that I attended last night. At a time when human rights in our society are being given a bad name, I hosted an event, in a room just around the corner, as the convener of the cross-party group on human rights: the Amnesty International human rights media awards. However, I was embarrassed to see that no other member of the Scottish Parliament was present at that successful event, which celebrated the work of journalists in Scotland who support human rights. It was embarrassing to have to admit that this Parliament appears to place little value on human rights.

In many debates on justice, a clear, sharp line is imagined between victims and offenders, with the Executive keen to present itself as being on the side of the victim. Of course we should be on the side of the victim but we should also have the courage to say that we are on the side of everyone whose interests we represent. Does inhumane and degrading treatment give offenders the best chance of changing their behaviour for the better? Does the violation of prisoners' human rights act as a reforming influence and represent good policy? I would challenge any member to make that case.

Respected voices in legal circles—Helena Kennedy is one that I would cite—have questioned the distinction between victims and offenders. Many offenders in our prisons are themselves the victims of crime. It is wrong to use the legitimate demands for greater respect for victims and for a bigger place for them in the system as a means to attack the rights of prisoners or to undermine the culture of human rights.

Some members might question how it is possible to be on the side of victims and the side of prisoners such as Robert Napier. However, that is difficult to understand only if we see the issue as an equation, as the motion implies that we are doing, that puts the human rights of prisoners before the human rights of victims. However, nobody has done that. The human rights of all are important; that is why we call them human rights.

A prisoner who is compensated for the violation of their human rights is not gaining "from their crimes", as the motion says, nor are they gaining from their incarceration; they are being compensated for the violation of their human rights.

Photo of Margaret Jamieson Margaret Jamieson Labour

If Robert Napier is not gaining financially, how is he gaining?

Photo of Patrick Harvie Patrick Harvie Green

I said that he is not gaining from his crime or his incarceration; he is being compensated for the violation of his human rights as the result of treatment that prisoners in Scotland are still experiencing and which should, by now, be history.

I accept the perceived injustice, but the motion implies an equal injustice. To award damages to victims on the basis of degrading treatment of prisoners is wrong. For one person to benefit financially because of the violation by the state of another's human rights would be every bit as ugly as the current situation that has been described.

I remind members that, quite rightly, the Executive will be legislating later this year to create a human rights commission. With human rights under sustained political threat in the United Kingdom and around the world, it is essential that we reinforce the culture of human rights in our society. Each of us, including those with whom we do not sympathise and cannot identify, must have a sense of ownership of the rights that are due to us. Reactive howls against perceived injustice will only strengthen the hand of those who would remove those rights from all of us.

Photo of Margaret Mitchell Margaret Mitchell Conservative 5:24 pm, 15th September 2005

I congratulate Margaret Jamieson on securing this important debate. I apologise for the oversight of not signing her motion before today, which I assure her I have now rectified.

Victims' rights have been brought starkly into focus as a result of the recent Napier judgment. A claim under the European convention on human rights was upheld and Lord Bonomy awarded Robert Napier compensation for slopping out. Despite the fact that the decision could have been avoided had the Scottish Executive not left itself wide open to a claim by incorporating the convention directly into Scots law without sufficient regard for the consequences and by diverting to other projects funds that were set aside for the express purpose of dealing with slopping out, it is nonetheless the case that, as a result of its application in this case, the ECHR has changed from being a mechanism to protect individual rights from being abused into a compensation scheme for crooks and criminals. Furthermore, as a result, law suits have been threatened not only for slopping out, but for prison boredom. That is madness.

Criminals should not benefit from their crimes. It is right and proper to press the Scottish Executive to pursue all avenues to ensure that no convicted criminal has the opportunity to gain financially from their wrongdoing or imprisonment.

In recent years, several criminals have profited from their crimes by publishing their memoirs or being paid to recount their crimes, for example. That is totally unacceptable and it is why the Conservatives pledged at the recent general election to amend the Proceeds of Crime Act 2002 to ensure that literary proceeds could be considered to be proceeds of crime. Literary proceeds would include not only royalties from the publication of a book, essay or article, but advance payments to assist any such book or newspaper story. Live entertainment or any other commercial exploitation of a crime would be included and the liability for confiscation of such proceeds would have no time limit.

I very much hope that the minister will support the motion in an effort to ensure that the real victims of crime—those who are mugged, robbed or abused—can in turn sue their assailants when prisoners for the suffering and distress that they inflicted. I am pleased to have had the opportunity to speak in favour of the motion.

Photo of Elaine Murray Elaine Murray Labour 5:28 pm, 15th September 2005

I, too, congratulate Margaret Jamieson on having her motion accepted for debate tonight. I concur with many of the sensible suggestions that she made. I do not always agree with Kenny MacAskill, but I very much agree with him that something is out of kilter when the rights of a perpetrator of crime seem to count for much more than a victim's rights. That is why I welcomed much of what the First Minister said in his statement on the legislative programme about the improvements to the justice system that will take place, including action on remand and bail and reform to sheriff courts.

I will not speak much about financial compensation, which has been well discussed; I will talk about other instances in the justice system where victims' human rights seem to count for less than others' rights. I will refer to local issues and local cases.

The Minister for Justice is well aware that when Adam Carruthers appealed against his sentence for the rape of two women constables, I was concerned that the justice system seemed to let down those rape victims by the continual protraction of the case and of the appeals system. I know from replies from the minister that action was taken to try to prevent that from happening in future, but we still have a problem in the sheriff courts. I hope that the action that we will take will deal with what happens in sheriff courts.

More than two years ago in the Parliament, I referred to a case in which a nine-year-old girl was sexually assaulted by a 15-year-old boy. I was concerned about the way in which the case was being protracted in the sheriff court. The young man was eventually convicted, sent to residential accommodation for a year and then returned to Dumfries and put into accommodation far from his victim. Unfortunately, he broke his bail conditions and went back to court. In his infinite wisdom, the sheriff decided to rehouse the young man with his family, which meant that he was housed opposite the school that the young girl still attends.

The young girl has moved home—her parents took her to another community—but her parents thought that it was in her interests to remain at the primary school because she had been so traumatised by her experience. Her granny lives just down the road from the school. There are conditions on the young man's bail and he is not allowed to go into the school, but they will not prevent the young girl from meeting him when she visits her granny or leaves school.

Where are the young girl's rights? Her granny came to see me during the summer recess in a fair state of upset. Nobody had told her about what was happening—she had found out from a neighbour. She said to me, "When I heard about what was happening, I was physically sick." Where are her rights? Something is still wrong and out of kilter if we do not sufficiently consider victims' rights.

I do not agree with everything Margaret Mitchell says, but I agree with what she said in this debate. I want to see a lawyer take somebody to court over a victim's rights. I challenge the real community out there to make an offer to a victim to take the perpetrator of a crime to court over the suffering that has been caused to that victim. It will take a hell of a long time for the little girl who was sexually assaulted to recover from what the young man did to her. At present, the system does not stick up for her rights.

Photo of Cathy Jamieson Cathy Jamieson Labour 5:32 pm, 15th September 2005

I, too, thank Margaret Jamieson for introducing this important debate. I share the commitment that she and other members have shown to putting victims and witnesses at the heart of our policies and legislation.

I say to Patrick Harvie that I do not see any contradiction between, on the one hand, being on the side of victims and wanting to ensure the best possible deal for them and, on the other hand, taking action as the Minister for Justice to tackle problems in our prisons and to ensure that our justice system deals with reoffending problems and tries to reduce the number of victims who will suffer in the future.

I understand Margaret Jamieson's views and other views that have been expressed. Sometimes it seems unjust or unfair to think that prisoners will somehow benefit financially from their imprisonment. I hope that people understand that I cannot comment on courts' decisions in individual cases and that, as a minister, of course I have to uphold the law and court judgments. However, if we are serious about justice and respect for the people of Scotland, it is important to think about individual human rights as well as social and collective rights, so that we can ensure that everyone has a fair opportunity to have their interests considered in law and legislation.

Kenny MacAskill was correct to follow up on Margaret Jamieson's comments on the general rights of victims and slopping-out issues. I welcome his recognition of the work that has been done by the Executive and the Solicitor General for Scotland in that context. Like Margaret Jamieson, he expressed concern about the lack of balance in the process and he pointed out that the issue involves not only the amount of compensation money—Margaret Jamieson and others have raised that issue, too—but the wider impact on the public purse and the legal aid bill.

In this morning's debate on the Family Law (Scotland) Bill, we heard about people who think that their access to justice to deal with daily problems that families face is being denied. People sometimes feel that those in the criminal justice system can take up cases while ordinary law-abiding citizens do not receive support. The Executive must seriously examine that issue when we consider legal aid reforms.

The Criminal Injuries Compensation Authority runs one of the oldest and most generous compensation schemes of its kind in the world, although that does not mean that we cannot improve things. The scheme compensated almost 5,000 victims of violent crime in Scotland last year, paying out more than £20 million. In some ways, that does not give me a great deal of comfort, as I want to see an end to such violence and an end to victims having to go through that process to gain compensation. Nonetheless, the total averages out at just over £4,350 per claim. As members will know, the scheme allows victims to make a claim to the authority, as opposed to making one against the offender. That is an important principle. If the victim is eligible, within the rules of the scheme, he or she will be guaranteed payment irrespective of the means of the offender. I would not want us to lose that principle.

Other routes allow victims to be compensated by offenders. A court can grant a compensation order to a victim, which is not limited to loss through personal injury. A victim can take their own civil action for damages against an offender, under the law of delict, if the offender has means. In those circumstances, the victim may be eligible for legal aid in pursuing that action. However, an important point that is raised in Margaret Jamieson's motion and that has been mentioned in the speeches that we have heard is that, if the Criminal Injuries Compensation Authority has paid compensation to a victim out of public funds, it should be able to pursue the offender to recoup the amount that has been paid out. That is why we have included provisions to that effect in section 13 of the Management of Offenders etc (Scotland) Bill, to amend the Criminal Injuries Compensation Act 1995.

I note Margaret Jamieson's concern about the time bar. She has pointed out other circumstances in which there are no time bars. We must strive to ensure that the rules on the time bar strike a balance between the rights of those who are pursuing claims and the rights of defendants to know that, after a set time, no claim can be made. That is important and it is an issue that we will examine during consideration of the Management of Offenders etc (Scotland) Bill. If any amendments were to be lodged to that bill, we would need to see whether we felt that a change could be made that improved the position but that, at the same time, protected those principles.

Margaret Mitchell and Elaine Murray made a number of points on the position of victims in general. Part of the reason why we have moved to speed up the court processes to deal with the reforms under the Criminal Procedure (Amendment) (Scotland) Act 2004 is to ensure that people do not have to go through the anguish of multiple appearances. Recent figures suggest that around 1,000 people—victims and witnesses—have been helped by those reforms. I assure Elaine Murray that I want to see the issue dealt with as we go through the process of summary justice reform.

Patrick Harvie said that it was with deep regret that he made some of his comments. I return to what I said at the beginning of my speech. Of course I want us to improve the whole range of resources that are available to help people who commit crime to turn their lives around and to ensure that they do not commit further crimes. Victims expect us to do that; they expect to see punishment and they expect us to move on rehabilitation. Patrick Harvie also said that some offenders are themselves the victims of crime. I do not doubt that. However, that does not excuse their actions. There can be no circumstances in which the fact that someone has been a victim allows them to commit crimes against someone else. I believe strongly that that is why we need a joined-up approach to the management of offenders.

Margaret Jamieson outlines several other interesting ideas in her motion and has raised them again this afternoon. It is right and proper that we should have this kind of debate, which opens up the possibility of future debate. The point was made in this morning's debate on family law, in which there are sensitive issues, that we must consider all the possibilities properly and get the balance right. We must not rush to law and end up making bad law in response to specific cases. That is why it is right and proper that we have had this debate this afternoon. I will reflect on all the comments that members have made and we will have further opportunities to discuss the matter in due course.

Meeting closed at 17:39.