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Criminal Justice In Scotland

Criminal Justice (Scotland) Bill
UNISON Scotland Response

April 2002

Executive Summary

UNISON Scotland welcomes the publication of the Criminal Justice (Scotland) Bill. We support the provisions of the Bill that:
  • Give greater protection to the public
  • Implements rights for victims, as regards victims' statements, and information on the release of an offender.
  • Bans physical punishment of all children under the age of 3.

However we would wish to see the extension of the ban on physical punishment to all children, and the removal of the out-dated clause of "reasonable chastisement". Along with the ban on physical punishment, we believe that the Executive should develop a more detailed and focused strategy to promote and educate people on non-violent discipline.

UNISON has considerable concerns regarding the Bill's provision to allow police authorities to contract out civilian support staff who provide vital services to police officers and the community at large. We oppose this contracting out of a public service provision.


UNISON is Scotland's largest trade union with over 145,000 members working in the public sector in Scotland. Our members are involved in Scotland's criminal justice system, working in social work, Children's Hearings, police civilian staff, local authorities, and the health service. UNISON members also work closely with children and young people in the delivery of health care, social work, pre-school education and care, school education, and out of school care.

UNISON Scotland welcomes the opportunity to respond to the Scottish Executive's Criminal Justice (Scotland) Bill.

Part 1: Protection of the Public at Large

UNISON welcomes the new proposals for the assessment and treatment of serious violent and sexual offenders, in order to provide additional protection to the general public.

Risk Management Authority

We support the establishment of the new non-Departmental public body - the Risk Management Authority (RMA). The RMA will have considerable powers and an important remit, and it is essential that it has the resources, expertise and authority to do carry out its role and functions effectively.

Risk Management Plans (RMPs) will potentially present a new area of work for the NHS and local government. Local authorities and the NHS will have additional responsibilities for preparing the RMPs and for providing annual reports, if they are given the "lead authority" role by the RMA. There are considerable resource and personnel implications to provide this service, and we trust that this is going to be recognised by the Scottish Executive.

The Bill states that local authorities can bear the costs or preparing and implementing RMPs from within their existing budgets. We have real reservations about this, given that local authority budgets are already under pressure. Whilst we acknowledge that local authorities currently have a statutory duty to provide appropriate services for these offenders, local authorities will need to establish and implement new working arrangements to meet this demand.

We welcome the provisions for the RMA to make recommendations to Ministers concerning the granting of specific funding where it appears to the Authority that this is required to ensure that a RMP can be prepared or implemented. However, we believe that the views of local authorities also need to be taken into account.

Part 2: Victims' Rights

The inclusion of victims' rights within the Criminal Justice Bill is most welcome. If people are to have faith in the justice system it is important that the system is transparent, open and fair for all. A crucial element of this is to recognise, respect and acknowledge the views and feelings of victims of crime.

Victims' statements

Victims' statements are a means of acknowledging the affect an offence (or apparent offence) has on a person, and ensures that they are included in the justice process. We welcome the Bill's references to include statements or communications from victims' who may need assistance or interpretation to give a victim statement, and statements from close relatives / cohabitees of victims who have died or are unable to give a statement themselves.

Rights to information on release of offenders

Equally, victims should have rights to receive information concerning the release of an offender as set out in the Bill. It is important that there is guidance on the procedures of giving and receiving information, and that victims are fully aware of their rights to receive such information, and how they should apply or access information.

Victims' access to support

UNISON welcomes the provisions to be proactive in offering victims of crime access to counselling or other support. Victims of crime should be helped to cope with the physical or psychological trauma that they may suffer as a result of the crime.

Part 3: Sexual offences etc.

UNISON welcomes the strengthening of the law as regards to serious and sexual offences.

Part 4: Prisoners etc.

We welcome the Bill's proposals to allow for young persons (aged between 14-21) to be remanded in young offenders institutions in certain circumstances. It is preferable to have such young people placed in young offenders' institutions, which aim at rehabilitating individuals to return to the community, rather than sending them to an adult prison.

However, we do have concerns that there is to be provision to commit a young persons aged 14 - 21 to a prison if the court so rules.

Part 5: Drugs Courts

Establishing courts to specifically deal with drugs offences is to be welcomed. The drugs courts should specialise in the nature of drugs and drug offenders, and ensure that the criminal justice system has a greater understanding of the dynamics of drug offending and drug abuse, so as it can implement appropriate and positive sanctions and treatments to drug offenders.

Part 6: Non-Custodial punishments

Non-Harassment Orders

UNISON supports the Bill's provision for a statutory power of arrest by the police for breach of a non-harassment order. We believe it is important to recognise the physical and psychological impact of harassment on the victims of harassers. However we feel there has to be careful consideration to the provision for arrest without warrant by a police constable. The Bill should ensure that the clause allowing a police constable to arrest without warrant if he or she "reasonably believes (an individual) is breaching a non-harassment order" is clearly defined and communicated, to protect the innocent from arrest without warrant.

Restriction of liberty orders

We welcome the option for courts to impose a restriction of liberty order on an offender (for offences other than those where the offence is fixed by law) as an alternative to a sentence which includes a custodial element.

Part 7: Children

Ending physical punishment of children

UNISON welcomes the Bill's proposals to clarify the law in relation to the physical punishment of children under 16, and to introduce an absolute prohibition on physical punishment of children under the age of 3. We believe that it is no more acceptable to "smack" a child than for one adult to hit another. Hitting:

  • Sets children the wrong example by teaching them that the use of physical force is an acceptable way of solving problems;
  • Can lead to more serious forms of child abuse;
  • Can cause children long term physical and psychological damage.

Whilst we welcome the Scottish Executive's proposals to ban the hitting of children under 3 and ban the use of implements, shaking and blows to the head for all ages, children do need greater legal protection against assault by adults. The only safe and workable reform is to give children the same protection as adults under the law on assault by removing the out dated defence of "reasonable chastisement" altogether.

Promoting non-violent discipline

Central to the banning of physical violence against children, should be a public information campaign and education programme on positive, non-violent discipline to support parents in stopping hitting children. We note the Bill has a provision for a public information leaflet, however, we believe that a much broader, strategic campaign is required. This could include advising on non-violent discipline in parenting classes in schools and colleges, more advice and practical guidance for new parents in pre- and post-natal care, and within nursery, social care and other support structures.

It is important that the Executive works in partnership with workers who may be delivering such programmes in formulating a non-violent discipline education strategy. Teachers, care workers, social workers, midwives, and health workers, have a range of skills and expertise on dealing with parents and children and it essential that they are consulted and involved in such strategies. Equally it is crucial that the Executive makes adequate resources available for this strategy.

Children's Hearings

We welcome the clause within the Bill to allow Ministers to set up pilot schemes to test the effectiveness of diverting 16-17 year olds who have committed minor offences away from the criminal justice system to the Children's Hearing System. It is important that we have a justice system that achieves a fair balance between punishing and rehabilitating. Children's Hearings focus on the needs of the young people, to address how the individual can be helped and supported, giving a child centred approach to helping the child ensuring that he/she does not re-offend and is integrated back into society. The criminal justice system looks at the deeds of individuals, and punishes the individual accordingly. This can be a harsh regime for a young person to be exposed to, and is unlikely to offer the same support and rehabilitation of the Children's Hearings.

If redirecting 16 and 17 year olds who have committed minor offences to the Children's Hearing System can be effective in rehabilitating these young people, rather than condemning them to a potential cycle of crime, this has to be tested, with a view to implementation. UNISON is clear that the Executive should provide the additional funding and resources that will be required to facilitate these pilots, and to ensure that the employees and members of the Children's Hearings are fully involved in the implementation process.

Part 8 Evidential, jurisdictional and procedural matters

We acknowledge the rights of individuals to challenge certain evidence relating to fingerprints and similar data where it is contained in certificate form. However, as the union representing employees within this crucial service, we are concerned that workers carrying out the scientific aspects of fingerprint collection should be protected from being falsely accused of distorting such data. UNISON believes clear guidelines on procedures and accountability should be developed by both management and unions to ensure a fair system is in place.

Part 10: Criminal Records

UNISON agrees with the extension of provisions regarding the registration of suitable persons to receive criminal record and enhanced criminal record certificates are suitable persons.

Part 11: Local Authority Functions

UNISON welcomes the Bill's provisions to allow Scottish Ministers to authorise funding to local authorities for criminal justice social work, arrest referral schemes and deferred sentences. However, we have real concerns that local authorities are being given considerable new remits to provide advice, guidance, and assistance to persons arrested or on whom sentences are deferred. This places additional burdens on social work departments within local councils, departments that are already under considerable resource pressures and are suffering recruitment and retention problems.

Part 12: Miscellaneous and general

Police Civilian Support Staff

UNISON is strongly opposed to the part of Bill (Section 61 Police custody and security officers) that provides for police authorities to contract out the employment of certain civilian support staff. UNISON has significant membership in this area of work that will be adversely affected by any contracting out. Police civilian support staff carry out critical work, of a security, social, or health nature, and it is essential that such work is carried out with the appropriate confidentiality and security. UNISON has serious reservations that the standards of confidentiality and security can be maintained where certain areas of work are contracted out.

Where public services are contracted out it is employees that lose out with cuts in pay and conditions, and the public receives a poorer service. Contracting out creates divisions in workforces where the police officers are public sector workers, but support staff are private sector workers. This disrupts team work and adversely affects morale. Even where existing staff do transfer under the TUPE regulations, two tier workforces emerge where new starts are employed on inferior contracts, and all workers are likely to lose out on pension rights.

Financial Memorandum

UNISON is concerned that the Bill does not give adequate resources to local authorities for the new provisions expected of them. Although local authorities already provide services for offenders, there will be additional financial implications with the Bill's requirements to change these existing procedures, train and recruit new staff. As noted above, there are current difficulties with recruitment, retention and workforce morale within social work. Placing additional burdens on social work departments without providing the necessary resources is not going to ease this situation.

We would welcome more reassurances from the Scottish Executive on funding for local authorities. The bill states that ring-fenced funding for local authorities could possibly be provided, on agreement with the Executive and Parliament. However we note that the potential allocation of ring fenced funding goes against stated Executive policy - in its 2003/04 Budget the Executive has declared it wishes to reduce the amount of ring fenced funding for local authorities.

As noted above UNISON is concerned that the provision of an information booklet will not be sufficient to change what is, in effect, a culture of acceptance of the physical punishment of children. We believe the costs of implementing a successful strategy to shift the culture away from physical chastisement to one of non-violent discipline, will be considerable, but worthwhile. Such a campaign for non-violent discipline will mean that there are resource implications for the NHS, local authorities and in education. We believe that the Executive should look at developing such a strategy and meeting its resource requirements.

For further information please contact:

Matt Smith, Scottish Secretary
UNISON Scotland
14, West Campbell Street,
Glasgow G2 6RX

Tel 0845 355 0845 Fax 0141 342 2835

e-mail matt.smith@unison.co.uk