Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020

Lord Hope of Craighead Excerpts

Wednesday 3rd June 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Campbell of Pittenweem, in expressing support for this order, but I am concerned by the statistics that the Minister mentioned at the outset of his speech. A disgraceful number of assaults against police officer have taken place during the present crisis. I express my admiration for the way our police forces have performed their quite difficult duties during this very difficult time, in weather that rather encouraged misbehaviour, I am afraid, in certain parts of the country.

At first sight, it seemed rather odd that it was thought necessary to resort to a UK SI to modify an Act of the Scottish Parliament, but those who prepared the Explanatory Memorandum have set out the position very well, as indeed the Minister did in his opening remarks. We are concerned here with a penalty that can be imposed by the courts in Scotland under the 2014 Act for an offence under another Scottish statute, the Police and Fire Reform (Scotland) Act 2012, for assaulting a police officer. To make this penalty more effective in the case of offenders with little means, it is necessary to amend a UK statute—the Criminal Justice Act 1991—which of course can be done only by an order made in this Parliament, under Section 104 of the Scotland Act 1998, as the Minister pointed out.

However, I would be grateful if the Minister could say a little more about how this system is likely to work in practice. The restitution order is an additional penalty for an offence under Section 90 of the 2012 Act—additional, that is, to a sentence of imprisonment or a fine. It seems rather unlikely that a sheriff would make a restitution order on its own, although the new Section 253A, introduced in the 2014 Act, would permit that, so we should have in mind an offender who is being asked to pay a fine, as well as having to satisfy a restitution order out of such money that he has at his disposal.

Where a restitution order is made, the amount involved could be substantial. The sheriff has power under the statute to require the offender to pay an amount not exceeding the prescribed amount, which currently stands at £10,000. The 2014 Act does not give any guide as to how a sheriff is to decide what is appropriate, but we know that the amount ordered does not go to the police officer as a form of compensation for what he or she has suffered at the hands of the offender. It is to be paid to the clerk of court for payment to Scottish Ministers as a contribution to the restitution fund, the purpose of which the Minister described.

I have known—I am sure that the noble Lord, Lord Campbell, does too—ever since my early experience as a legal trainee in the sheriff courts how difficult and how depressing it can be to extract money by way of a fine from people of limited means. Offenders are given time to pay, but all too often the payments are not made. Deducting money from their source of income so that they cannot avoid or delay payment is the most secure way of doing it. That is the idea that has given rise to this order. But almost by definition those who are on social security benefits are people of limited means.

Section 24 of the 1991 Act allows the court, after inquiring as to the offender’s means, to apply to the Secretary of State to deduct sums from any amount payable by way of benefits, but will the Secretary of State have any say on how much should be deducted to avoid undue hardship to the offender or his family? What if the amount is to be paid over a long period and the benefit amounts change during that period? Can the periodical amounts be changed if there is a change of circumstances? Are sheriffs to be encouraged in hardship cases to dispense with a fine where a restitution order would be more appropriate? What is being done here might seem to be good idea, but we need to be reassured as to its consequences.