House of Commons Hansard Debates for 17 Oct 1990

Mr. Harry Ewing : The Minister says that an offender will not be able to buy himself out of a supervised attendance order. What sanction is available if the offender fails to complete the allocated number of hours? Is the sanction imprisonment? If that is the case, we are caught in the situation from which we are trying to escape.

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Lord James Douglas-Hamilton : The answer to the hon. Gentleman's question is yes. What happens is broadly similar to that which occurs after non-co-operation with a community service order. I hope that that will not happen in more than a few cases. I confirm to the hon. Gentleman that section 395(1) of the Criminal Procedure (Scotland) Act 1975--the hon. Gentleman may have played a part in getting that Act on to the statute book --states :

"A court in determining the amount of any fine to be imposed on an offender shall take into consideration, amongst other things, the means of the offender so far as known to the court."

The High Court has rightly emphasised that in appeal cases. In this connection, I agree with the hon. Member for Garscadden.

The hon. Member for Greenock and Port Glasgow (Dr. Godman), who has left the Chamber for a moment, said that there was a need to do more work on implementation. I agree. Detailed guidance for social work authorities on the operation will be drawn up in consultation with interested parties before the provisions of the Bill come into force. The hon. Gentleman also asked about non-social work supervisors. Their use is well precedented in bringing forward community service schemes. They always have access to support and advice from professional social workers.

Like the hon. Member for Garscadden, I think that it is important for there to be a range of community disposals in which the people of Scotland can have confidence. The hon. Gentleman asked me about this late last night, when he asked me to speak about probation. Fewer than 3 per cent. of offenders appearing before the High and sheriff courts are placed on probation. While probation is not suitable for all offenders, it has the potential to make a much bigger contribution. It has been somewhat neglected, so we saw 100 per cent. funding as important, not just for community service orders and supervised attendance orders, but also for probation.

When we gave 100 per cent. central funding for community service orders, it resulted in a 25 per cent. increase in the number of such orders in the first year. Obviously, that is an important consideration.

Mr. Dalyell : Why does the Minister think that the level of provision has fallen back like this? When I was first elected to the House, there was a tough probation officer in West Lothian who was a father figure and who sorted out a number of boys by using common sense and know-how. That sort of thing does not happen to such an extent these days, unfortunately.

4.15 pm

Lord James Douglas-Hamilton : Our information is that local authority social workers are often reluctant to recommend this course of action in social inquiry reports, possibly because of the work load consequences for them, so 100 per cent. funding will assist. Clause 51 makes other necessary changes to improve the effectiveness of the services. It ensures that community service orders are reserved for those offenders who would otherwise have been imprisoned. As the hon. Member for Garscadden said, the result would be to increase the number of fines. We believed it to be essential to do something about the problem of fine defaulters, or the Bill would inadvertently result in more people going to prison

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than was the intention of any hon. Member who served on the Standing Committee that considered the Bill, or the House as a whole.

Mr. Menzies Campbell : Like others, I have been critical of the Minister from time to time during the passage of the Bill, but I warmly welcome what he has just said. It betokens an enlightened and sensible attitude from the Department. I echo the sentiments expressed by the hon. Member for Linlithgow (Mr. Dalyell). The effectiveness of the probation service before the Social Work (Scotland) Act 1968 was a watchword in penal circles. If we can, by a more generous allocation of funds, return to probation officers the stature that they enjoyed and the successes that they were able to achieve, that would be a good thing for many young people in Scotland.

Lord James Douglas-Hamilton : I thank the hon. and learned Gentleman for what he has just said. I think that this move will also be welcomed by prison officers, who have the duty of looking after those who are in prison because of serious crimes. If a young person who has committed a minor misdemeanour and finds difficulty in paying his fines--there are hundreds of such cases--can be dealt with in this way, that will help with the administration of the prisons.

Mr. Dewar : It seems to me that the drive of some of these comments is a move away from generic social workers and back to specialisation in the social work department. I should be interested to hear whether the Minister embraces that proposition.

I wish to clarify what the Minister has just said, because it is important. The thrust of his central argument is that there will be large fines, leading to fine defaults and the use of the new supervised attendance order, which is aimed at preventing a specific increase. Do the Government hope that the supervised attendance order will be widely used, perhaps for small defaulters--people who are fined under £50 but who have not paid, perhaps because they are on benefit or have a number of social pressures on them--who will benefit from the flexibility that this allows, with the result that there is a reduction? In other words, I want to know what part the Minister thinks that a supervised attendance order will play, and whether it will largely replace, over time, the imprisonment factor.

Lord James Douglas-Hamilton : My view is that it will be seen as a lesser form of community service, shorter in scope and easier to carry out by those concerned. A range of disposals is important. The 100 per cent. funding for the probation community service order and supervised attendance orders will give the court a choice, which will depend on the seriousness of the case.

The hon. Member for Greenock and Port Glasgow also asked about the role of the social workers. Social workers should be deployed where their special skills can be used to the best effect. They will be responsible for the planning of supervised attendance orders and for generally overseeing their operation. The day-to-day supervision can be provided more cheaply by other local authority staff, and many of the components of the programme could be brought in from other providers, such as voluntary organisations. For example, local councils on alcohol could provide speakers on alcohol abuse.

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It is important to distinguish supervised attendance from probation. In probation, the focus is on the individual offender and his offending behaviour. A probation order combines control of the offender with assistance to help him to solve his personal problems and stay out of trouble. Probation calls for the special skills of the social worker in one-to-one counselling and small group interaction. In contrast, supervised attandance will not be concerned with tailoring the approach to the individual offender. In essence, it is a fine on the offender's free time, and the supervisor's main function will be to ensure punctual attendance and good behaviour of a group of about eight to 12 offenders, whose activities will follow a standardised modular pattern.

The hon. Member for Greenock and Port Glasgow may have missed my earlier comment. In answer to his point, I can say that the Government do not believe that it would be a sensible use of scarce social work skills to have professional staff solely carry out this work. They will be much better employed in doing the things that only they can do--providing supervision and help to offenders on probation and parole, and preparing social inquiry reports to enable the courts to choose the most appropriate disposal.

Dr. Godman : I sincerely apologise to the Minister for the fact that I have been racing around for the past few minutes and therefore missed his comments.

It is essential that any activity-centred scheme is realistic and constructive, so that it helps such people to come back into the community. I know that ex-drug users at some centres spend many empty hours that could be more usefully spent preparing them to find jobs. That is why it is essential that the supervision is carried out by highly qualified and trained people.

Lord James Douglas-Hamilton : I agree with the hon. Gentleman, but there are degrees of specialisation within the social work department. As the hon. Member for Garscadden suggested, we want to encourage greater specialisation in working with offenders. In response to the point raised by the hon. Member for Garscadden, I confirm that supervised attendance orders will be widely used for defaulters of small fines. They will be highly appropriate in that category. The provision fulfils an important need.

Mrs. Margaret Ewing (Moray) : I am carefully following the Minister's arguments, and I agree that there is a need for qualified, trained social workers to be involved. Will there be additional recruitment into social work, and will additional funding be made available to colleges and universities involved in the training of social workers? The necessary resources and back-up facilities must be provided, because social work departments are already under severe strain.

Lord James Douglas-Hamilton : That is obviously a matter for the consultative group, which will have representation from local authorities, the judiciary and other relevant, interested bodies. We shall keep closely in touch with the position.

We believe that the new penalty will be of great value in helping to reduce the pressure on the prisons, while continuing to provide a disincentive to fine default and

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enabling those who do default to make amends for their offence through loss of their free time, disciplined attendance and constructive activity.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New clause 21

Effect of mental incapacity on powers of attorney etc.

.--(1) Any rule of law by which a factory and commission or power of attorney ceases to have effect in the event of the mental incapacity of the granter shall not apply to a factory and commission or power of attorney granted on or after the date on which this section comes into force.

(2) In subsection (1) above, "mental incapacity" means, in relation to a person, that he is incapable of managing his property and affairs by reason of mental disorder within the meaning of section 1 of the Mental Health (Scotland) Act 1984.'.-- [Lord James Douglas-Hamilton.]

Brought up, and read the First time.

Lord James Douglas-Hamilton : I beg to move, That the clause be read a Second time.

Mr. Speaker : With this it will be convenient to discuss the following : New clause 8-- Further provisions as to judicial factors --

.--After section 35 of the Judicial Factors Act 1849 there shall be inserted the following section--

"35A--(1) Subject to subsection (5) below, where an individual grants a factory and commission or power of attorney which includes a declaration of intention to which this section applies, the factor and commission or power of attorney shall not be revoked only by reason of any subsequent mental incapacity.

(2) This section applies to a declaration of intention which is in the prescribed form and includes a statement that the granter intends the factory or commission or power of attorney to continue despite any subsequent mental incapacity of his, provided that--

(a) the factory and commission or power of attorney has been subscribed by the granter and attested by two witnesses before a notary public and has been registered in the Books of Council and Session or in the books of the appropriate sheriff court of the sheriffdom in which the granter habitually resides ;

(b) the notary public has made a statement in the prescribed form that the granter has read or has had read to him prescribed information explaining the effect of the declaration ; and (c) the granter has sworn or affirmed before the notary public that the declaration was made freely and without coercion of any kind. (3) In subsections (1) and (2) above mental incapacity' means, in relation to a granter, that he is incapable of managing his property and affairs by reason of mental disorder.

(4) Mental disorder' has the same meaning as in section 1 of the Mental Health (Scotland) Act 1984.

(5) A factory and commission or power of attorney which includes a declaration of intention to which this section applied shall be revoked by appointment of a curator bonis or tutor-dative and may be revoked on application to the court by any person having an interest.

(6) In this section--

(a) prescribed' means prescribed by regulations made by the Secretary of State :

(b) the court' means the Court of Session or the sheriff court".'.

Government amendment No. 108.

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Lord James Douglas-Hamilton : New clause 8 in the name of the hon. Member for Glasgow, Garscadden (Mr. Dewar) and new clause 21 have similar aims. They seek to overcome a problem faced by an increasing number of families where a relative, who has granted a factory and commission or power of attorney, subsequently becomes mentally incapacitated. In Scotland, unlike England and Wales, a power of attorney terminates if the granter becomes mentally incapacitated. A curator bonis could be appointed, but in view of the costs involved, a curatory is not usually considered worthwhile except for fairly large estates.

New clause 8 mirrors for Scotland provisions in the Enduring Powers of Attorney Act 1985 which apply to England and Wales, but the simpler provision in new clause 21 will achieve the same end. It will ensure that, after the commencement of the provision, any existing rule of law by which a factory and commission or power of attorney ceases to have effect in the event of the mental incapacity of the donor shall have no effect. Mental incapacity is as defined in section 1 of the Mental Health (Scotland) Act 1984.

The provisions will apply only to powers of attorney granted after the provision comes into force. It does not seek to alter the effect of powers of attorney already granted, nor does it revive powers of attorney that have lapsed because of the mental incapacity of the donor. In the former case, the granter can revoke any existing power and grant a new power.

Amendment No. 108 seeks to ensure that the new clause will come into effect as soon as possible--that is, on commencement of the Act. New clause 21 is sufficient to achieve the objectives sought by the hon. Member for Garscadden. It has been deliberately kept simple, since the Law Commission intends to publish later this year a discussion paper on powers of attorney and other matters relating to guardianship of the adult incapacitated.

It may turn out that, on the basis of the commission's consultations, and a more wide ranging consideration of the matter, a different solution to the problem may emerge. Accordingly, I ask hon. Members to recognise that it may be necessary to return to the subject when the commission issues its report and recommendations. In bringing forward the new clause we recognise that a social need exists which should be met now, and new clause 21 is sufficient to achieve that end. Therefore, I ask hon. Members to accept new clause 21 and amendment No. 108, and I ask the hon. Member for Garscadden to withdraw new clause 8.

Mr. Dewar : I have no difficulty about falling in with the Minister's request on this occasion. I do not always think that a shorter clause is a better clause but there is no doubt that we are attempting to obtain the same result and I am perfectly happy to take the Minister's word that his new clause encompasses the meaning more conveniently. It is an admirable means of curing a difficulty, which, as he fairly said, has faced many families who unfortunately, have had to deal with the situation where a close relative no longer has the faculties to look after his or her affairs. It is right in those situations--in a sense anticipated, because a power of attorney has been granted--that the power of attorney should run on and allow the proper administration of that person's affairs. I am glad that the Minister has acted to achieve that. I welcome his new clause, and will not press new clause 8.

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Dr. Godman : I, too, welcome new clause 21. Will the Law Commission, as part of its brief, comment upon the code of practice which was produced under the auspices of the Mental Health (Scotland) Act 1984? I ask that question because I am fairly confident that neither the House nor the Scottish Grand Committee has ever had the opportunity of scrutinising the workings of that important Act.

Lord James Douglas-Hamilton : The remit is for the Law Commission to consider later in the year matters relating to the guardianship of the adult incapacitated. In so far as the code relates to this, it would be perfectly competent for the Commission to comment on it as it so wished.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 24

Evidence of children through television link in criminal proceedings

.--(1) Subject to subsections (2) and (3) below, where a child has been cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the child by means of a live television link.

(2) The court may grant an application under subsection (1) above only on cause shown having regard in particular to

(a) the possible effect on the child if required to give evidence, no such application having been granted ; and

(b) whether it is likely that the child would be better able to give evidence if such application were granted.

(3) In considering whether to grant an application under subsection (1) above, the court may take into account, where appropriate, any of the following--

(a) the age and maturity of the child ;

(b) the nature of the alleged offence ;

(d) the relationship, if any, between the child and the accused.'.-- [Lord James Douglas-Hamilton.]

Brought up, and read the First time.

Lord James Douglas-Hamilton : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker : With this we may take the following : Government new clauses 25 to 27.

New clause 1-- Evidence of children on commission in criminal proceedings--

.--(1) Notwithstanding section 32 of the Criminal Justice (Scotland) Act 1980 and subject to section (Circumstances in which procedures may be authorised) of this Act, where a child has been cited to give evidence in a trial, whether under solemn or summary procedure, the court may, on an application being made to it at an appropriate time, appoint a commissioner to take the evidence of the child.

(2) The proceedings before a commissioner under this section shall be recorded by video recorder.

(3) The accused shall not be present in the room where the proceedings under this section are taking place except with the leave of the commissioner, but the accused, if not present, shall be entitled to watch and hear those proceedings by such other means as seem suitable to the commissioner.

(4) In subsection (1) above "at an appropriate time" means (a) in relation to solemn proceedings, at any time before the oath is administered to the jury ;

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(b) in relation to summary proceedings, at any time before the first witness is sworn, or

New clause 2-- Use of screens in taking evidence of children in criminal proceedings--

.--(1) Subject to section (Circumstances in which procedures may be authorised) of this Act, where a child has been cited to give evidence in a trial, whether under solemn or summary procedure, the court may, on an application being made to it, authorise the use of a screen to conceal the accused from the sight of the child, notwithstanding that such use of a screen is objected to by or on behalf of the accused.

(2) Where a screen is used in pursuance of this section, arrangements shall be made to ensure that the accused is able to watch and hear the child while the child is giving evidence.'. New clause 3-- Evidence of children through television link in criminal proceedings--

.--Subject to section (Circumstances in which procedures may be authorised) of this Act, where a child has been cited to give evidence in a trial, whether under solemn or summary procedure, the court may, on an application being made to it, authorise the giving of evidence by the child by means of a live television link.'. New clause 4-- Circumstances in which procedures may be authorised--

.--(1) The court may grant an application under sections ( --Evidence of children on commission in criminal proceedings --), ( --Use of screens in taking evidence of children in criminal proceedings --) or ( --Evidence of children through television link in criminal proceedings --) of this Act only on cause shown having regard in particular to--

(a) the possible effect on the child if required to give evidence in open court ; and

(b) whether it is likely that the child would be better able to give evidence if not required to do so in open court.

(2) In having regard to the matters referred to in paragraphs (a) and (b) of subsection (1) above, the court may take into account, where appropriate, any of the following

(a) the age and maturity of the child ;

(b) the nature of the alleged offence ;

(d) the relationship, if any, between the child and the accused.'. Government amendment No. 127.

4.30 pm

Lord James Douglas-Hamilton : This is perhaps the most important issue before us this afternoon. The clauses concern the protection of children in criminal cases, about which there has been widespread concern, and it is right that they should be before us today. There has been considerable concern about criminal trials where child witnesses under stress have been unable to give their evidence properly. The hon. Member for Greenock and Port Glasgow (Dr. Godman) tabled a number of amendments in Committee, and made it clear that he wished to return to the matter on Report.

The discussion is centred on the use of a live television link arrangement, under which the child witness would be in a room separate from the court room and would give evidence through closed-circuit television. We have decided that the arrangement should be progressively introduced in Scotland. It is

intended--subject to consultation with the judiciary--that appropriate equipment should be available initially in Edinburgh and Glasgow.

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The arrangement is based on the recommendation of the Scottish Law Commission in its "Report on the evidence of Children and Other Potentially Vulnerable Witnesses", published earlier this year. The Commission believes that, in many cases, children will be able to give evidence in court by conventional means.

Live television links should be required in relatively few cases. Their use is accordingly to be at the discretion of the trial judge, according to the statutory criteria set out in the first Government amendment. It would of course reduce the expected benefits from the use of the live television link if the child witness still had to identify the accused in court in a face-to-face dock identification. Accordingly, a further Government amendment deals with evidential requirements.

There are also further provisions dealing with sheriff court jurisdiction and the transfer of sheriff court cases within a sheriffdom. The jurisdiction provision enables a case to be taken anywhere in a sheriffdom, and the transfer of a case within a sheriffdom will be allowed when an application for the use of a live television link has been approved. Without these transfer provisions, it would be difficult to operate the new procedure efficiently. We have reached the view that we should not--at least, in the meantime--implement the Scottish Law Commission's recommendations with regard to a video --recorded pre-trial deposition procedure and a statutory provision relating to the use of screens. The deposition procedure would involve an examination of the child witness, ideally before the judge who was to preside at the trial. Much the same purpose will be served by a live television link. We have decided that it is appropriate to introduce the live television link procedure first, and monitor its operation carefully before considering other statutory measures.

Mr. Dalyell : Will the Minister say why he thinks that he and his Department know better than the Law Commission? I thought that the Law Commission was rather convincing.

Lord James Douglas-Hamilton : I would not say that I knew better than the Law Commission. I have discussed the matter in detail with my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). [Interruption.] The hon. Member for Garscadden is expressing scorn, but my hon. and learned Friend probably has more experience of criminal cases than any other Scottish Member of Parliament. He has considerable knowledge of the subject.

Mr. Dewar rose--

Lord James Douglas-Hamilton : I will give way to my hon. Friend the Member for Tayside, North (Mr. Walker), as I have not done so yet.

Mr. Bill Walker (Tayside, North) : My hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) asked me, if the opportunity arose, to express his apologies for not being present, and to state clearly that he supports what the Government are doing and believes that it is right.

Lord James Douglas-Hamilton : I thank my hon. Friend. My hon. and learned Friend the Member for Perth and Kinross told me the same.

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The Government take the view they do because to adopt another arrangement could be prejudicial to the accused. I myself have been involved in a court case in which a child witness identified a boy as guilty of murder, but under cross-examination admitted that he had told a lie on the instructions of relatives. I have seen that happen. That case involved youths who had kicked another youth to death. If that child's claim had not been broken down under cross-examination, an innocent person could easily have been convicted of murder. As well as the protection of children, we must bear in mind the importance of fairness to the accused.

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