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PROTECTION OF EMERGENCY WORKERS
A Consultation Paper

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MINISTERIAL FOREWORD

In 'A Partnership for a Better Scotland', we made a pledge to reduce crime and combat the anti-social behaviour that threatens our communities. An important part of this was our commitment to protect emergency workers from assault and obstruction. Over the summer we have held a number of meetings with trade unions and professional bodies to discuss the best way to achieve this goal.

In recent years there have been far too many brutal and callous attacks on emergency workers in the course of their duty. They have been physically attacked, shot at with air rifles, chemicals have been sprayed in their faces, fireworks, bricks and bottles have been thrown at them and their equipment. This is entirely unacceptable.

People working in emergency situations need to be able to act without fear of being assaulted. Anyone who obstructs, assaults, molests or hinders a member of any emergency service is putting the lives of others at risk. The emergency services have to respond quickly and any unnecessary obstruction puts both the public and the emergency personnel in danger.

The common law already provides protection for everyone from assault and an attack on any worker who is delivering a public service is seen as particularly serious. Steps have been taken recently to strengthen this. However, because of the special demands of acting in emergency situations, we believe there is a case for providing explicit statutory protection for these essential groups of workers and those assisting them.

The proposed legislation will not stand alone. It will be part of a wider package of measures that will be taken forward to help address the problem of attacks on public service workers that we will develop with the STUC, other representative bodies and relevant agencies over coming months.

Andy Kerr
Minister for Finance and Public Services

INTRODUCTION

The current position

1.1 The criminal law of Scotland is a combination of common and statutory law. Many crimes, both serious and minor, are based on common law which is drawn from custom and embodied in the decisions of the criminal courts. Other offences have been defined in statute (law enacted by Parliament); these may be offences that are also crimes at common law, or new offences.

The common law

1.2 The common law provides protection from assault for all persons. Aggravating circumstances are taken into account when the decision is made as to the court in which a case will be prosecuted. The more serious the offence, the higher the court it is sent to and the higher the maximum level of penalty available on conviction. These aggravating circumstances are also taken into account during trial and sentencing. The maximum sentence for assault when prosecuted on indictment is life imprisonment.

1.3 Steps have been taken recently to reinforce protection of workers under the common law, following a debate in the Parliament in February 2003. The Lord Advocate has issued guidance to procurators fiscal, stating that:

'Incidents involving attacks on public sector workers, eg doctors in hospitals, train and bus drivers, should be taken seriously. The locus and the fact that the worker is providing a service to the public are both aggravating factors which should be borne in mind by prosecutors in deciding the appropriate forum for the case.'

1.4 The effect of these guidelines is that such attacks are treated more seriously than ordinary attacks and the likelihood of solemn proceedings for such incidents is greater.

1.5 Initial monitoring of the impact of the Lord Advocate's guidance has confirmed that, where a case involves an allegation of an attack on a worker providing a public service, this is treated seriously, both by the Crown Office and Procurator Fiscal Service and by the courts. The following are recent examples of how such incidents have been dealt with in practice:

• A prosecution in Forfar Sheriff Court related to an assault on an ambulance officer attending an incident in a pub. In fining the accused 1000, the Sheriff said "...to assault a member of the ambulance service has got to be regarded as a serious matter and those employed in this service and others must know that they have the support of the courts when they get into difficult and fraught situations".
• An accused was prosecuted on indictment in Arbroath Sheriff Court for an incident which included the hurling of roof slates at emergency services workers. He was sentenced to three years imprisonment. In responding to an appeal against this sentence by the accused, the Sheriff stated: "This particular court is concerned to make plain that conduct of this sort will not be tolerated. In particular, it is concerned to demonstrate that criminal conduct placing the lives of public servants at risk while in the course of their duties will attract severe sentences. As the appellant's agent recognised, no sentence other than that of detention was appropriate. A deterrent sentence was, in my view, justified."
• In the Borders, another accused prosecuted on indictment was sentenced to two years' imprisonment for threatening an ambulance officer with a knife, while he was tending to a victim of an assault.
• In Edinburgh a man was prosecuted on indictment in the Sheriff Court for assaulting a bus driver by hitting him on the head with a rock. He was sentenced to three years imprisonment.
• In Glasgow, two accused assaulted a train driver and another, who intervened to stop a disturbance on a train during the course of its journey. The sheriff stated that these incidents must be treated in the most serious manner and sentenced each accused to three years imprisonment.
• At Hamilton, a man who was convicted of two assaults, one of which was an unprovoked attack on a bus driver shortly after he commenced his shift on a Hamilton to Glasgow route, was sentenced to 12 months imprisonment.

1.6 A major advantage of the current position is that the flexibility of the common law allows it to respond to assaults and other unacceptable behaviour towards the emergency services and other workers whatever the circumstances.

Statute law: police and fire-fighters

1.7 In the past, because of the unusual demands and circumstances of their work, specific provisions have been made in statute law covering assault on, or obstruction of, fire-fighters and police officers.

1.8 Section 30 (2) of the Fire Services Act 1947 states that:

'Any person who wilfully obstructs or interferes with any member of a fire brigade maintained for the purposes of this Act who is engaged for fire-fighting purposes shall be liable on summary conviction to a fine not exceeding level three on the standard scale [currently 1000].'

1.9 More substantial is Section 41 of the Police (Scotland) Act 1967, which states that:

(1) Any person who -

(a) assaults, resists, obstructs, molests or hinders a constable in the execution of his duty or a person assisting a constable in the execution of his duty, or

(b) rescues or attempts to rescue, or assists or attempts to assist the escape of, any person in custody shall be guilty of an offence ...

The maximum penalty on summary conviction is nine months' imprisonment, a fine of 5000, or both.

1.10 It should be noted that the Police (Scotland) Act covers assault as well as obstruction. We propose to include new provisions extending equivalent protection to fire-fighters in the Fire Services Bill to be introduced to the Scottish Parliament next year.

PROPOSED LEGISLATION

2.1 We believe that the particular demands of working in emergency situations justify the extension of a level of protection in these situations equivalent to that offered by the Police (Scotland) Act to emergency workers and anyone assisting them. It is totally unacceptable that emergency workers who are regularly putting their own lives at risk to save others should be subject to attacks while undertaking their essential duties.

2.2 As well as the special position of the emergency services, we also recognise that, in the immediacy of an emergency situation, it may not be just members of these services who respond but that they may be assisted by others caught up in that situation. It is only right that they are protected too. We therefore propose to cover not only emergency workers but all persons assisting them in emergency situations.

2.3 We therefore propose to bring forward legislation to give statutory protection for emergency workers and other persons assisting them in emergency situations in line with the Police (Scotland) Act, with the same maximum penalty on summary conviction.

Who is an emergency worker?

2.4 For such legislation to be effective, we will need to identify which groups are to be covered by it. Some are obvious: we will include police, fire and ambulance services, the traditional 999 services. In a similar way, lifeboat crews and mountain rescue teams respond to emergency call-outs and we believe there may be a case for giving them the same level of protection.

2.5 GPs, community nurses and community midwifes also go out to attend emergencies, which may be a matter of life and death. We believe that there is an argument that they should also be covered when they are attending such situations although it may be less obvious to a potential assailant that the person is a GP, nurse or midwife.

2.6 In hospitals, Accident and Emergency Departments deal with emergency admissions and are the areas in which staff are most vulnerable to assault. We propose to include doctors, consultants, allied health professionals and nurses working in these departments. If other members of staff, assisting medical workers to respond to an emergency, were also to be assaulted, they would be protected.

2.7 Consideration also needs to be given to workers who respond to environmental emergencies. These may present a direct threat to human life or health, as in the case of workers responding to a major gas leak or to a contamination of the water system. An example of a primarily environmental emergency might be a major oil or chemical spill in a river. We would welcome views on whether workers from, for example, Scottish Water, the gas companies and the Scottish Environment Protection Agency should also be included in the list of emergency workers when they are dealing with such situations.

2.8 Are there any other groups of emergency workers who should be included?

Defining an emergency situation

2.9 The proposed focus of the legislation is to protect emergency workers, and those assisting them, in emergency situations. It is therefore important to have a clear definition of an emergency situation. We consider it should cover situations where there is an immediate risk to human life or where there is a risk of substantial damage to buildings or the environment. We also believe that significant and immediate threats to human health, for example, contamination of water supplies which represents a serious risk to public health, should be covered. We would welcome views on these proposals.

Hoax calls

2.10 Sometimes members of the emergency services are attacked while responding to an emergency call that turns out to be a hoax. The attack may be carried out by third parties or the hoax may even be the preface to a premeditated assault on the emergency services who are lured to the scene. Although there may be no actual threat to life or the environment, we believe it is important that the legislation should cover emergency workers in these situations. Again we would welcome views on these proposals.

Summary

2.11 We seek views on the proposal to introduce legislation which would make it an offence to assault, obstruct or hinder emergency workers (or any person assisting an emergency worker) in an emergency situation, which groups of emergency workers should be covered and how an emergency situation might best be defined.

PUBLIC SERVICE WORKERS IN NON-EMERGENCY SITUATIONS

3.1 We have also given detailed consideration to introducing a statutory aggravation to cover attacks on all workers delivering a public service, such as teachers, social workers and bus and train drivers. The Executive takes such attacks very seriously but we believe that to bring in a statutory aggravation, replacing the common law aggravations discussed above, would actually weaken protection for such workers rather than strengthening it, not least because of a loss of flexibility.

3.2 The difficulty regarding the introduction of a statutory aggravation is that it would create a fixed definition of a category of workers that the aggravation would apply to. This may lead to aggravated charges not being proceeded with under statute, because they do not fit the restrictive statutory template. There are also significant problems of definition and the risk of creating classes of workers or members of the public against whom an attack is perceived as less serious because such groups do not fall within the statutory definition _ even if the events form part of the same incident. The burden of proof might also be greater, which could cause problems in prosecuting and ultimately obtaining conviction for the aggravated offence. These difficulties do not arise when proceeding with a common law aggravation.

3.3 It should also be stressed that the availability of a statutory aggravation does not of itself ensure consistency in the courts in sentencing those convicted of aggravated offences. We have set up a Sentencing Commission to review and make recommendations on, among other matters, consistency and effectiveness of sentencing.

3.4 As indicated above, the Lord Advocate's recently-issued guidance to Procurators Fiscal emphasises that attacks on public service workers should be treated as an aggravating factor when considering how the case should be prosecuted. The guidance applies equally to emergency and non-emergency situations. We consider that time should be allowed to assess how the guidance is working in practice and to judge its effectiveness. Initial indications are that both prosecutors and the courts are treating incidents involving attacks on workers providing a public service as serious offences.

Wider measures

3.5 While for the reasons outlined in this consultation paper we do not consider that the proposed legislation should extend beyond emergency workers nor introduce a statutory aggravation, the Executive will be taking forward, in partnership with the STUC, other unions and representative bodies, and relevant agencies, a wider package of measures to educate the public and to reinforce the message that attacks on public service and other workers are totally unacceptable. This is likely to include increased use of CCTV, evidence-sharing and partnership working, and wider awareness and educational campaigns.

CONSULTATION

4.1 We would welcome your views on the proposal to introduce legislation which would make it an offence to assault, obstruct or hinder emergency workers (or any person assisting an emergency worker) in an emergency situation and on the various issues set out in this paper. In particular we invite comments on which groups of emergency workers should be covered and how an emergency situation might best be defined.

4.2 All comments should be submitted to the following address by 6 February 2004. It would be very helpful if comments could be submitted in advance of this date. This period is slightly shorter than normal for a consultation but it follows a series of consultative meetings with a range of trades unions and professional bodies. We would also like to be able to introduce appropriate legislation at the earliest possible opportunity.

Emergency Workers Consultation
Criminal Justice Division
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

E-mail: emergencyworkersteam@scotland.gsi.gov.uk
Telephone: 0131 556 8400

Confidentiality

4.3 Where confidentiality is not requested, copies of responses received will be placed in the Executive library and will be available to the general public. The view expressed by respondents may also be quoted or referred to in any future review of responses. If you do not wish your responses to be made public, please ensure that you indicate clearly that all or part of your response is to be treated as confidential. We will still count confidential responses in any statistical analysis and your views will of course be taken into account in the same way as for non-confidential responses.

Electronic publication and additional copies

4.4 Additional copies of this document are also available, on request, and in audio and large print formats from the above address. It can also be viewed on the Scottish Executive website at www.scotland.gov.uk .