« Previous | Contents | Next »
Listen
CHAPTER TEN: ANALYSIS OF PRESCRIBED OFFENCES
10.1 This chapter contains the results of an analysis of the offences included within the scope of the pilot victim statement scheme. If the scheme is to be rolled out across Scotland, it is important that the list of "prescribed offences" is clearly drafted so that it is consistently applied across the country. As this chapter indicates, there were some differences in interpretation of the list of offences which led to minor differences in practice between the different pilot sites and which might be expected to lead to variations in practice were the scheme being applied across a larger area.
10.2 The list of offences "prescribed" for the purposes of the victim statements scheme can be found in the Victim Statements (Prescribed Offences) (Scotland) Order 2003, 142 as amended by the Victim Statements (Prescribed Offences) (Scotland) Amendment Order 2003 143 and the Victim Statements (Prescribed Offences) (Scotland) Amendment (No. 2) Order 2004. 144 The 2003 Amendment Order added robbery, which was omitted from the 2003 Order. As the 2003 Amendment Order came into force prior to the start of the pilots, this omission had no effect on the operation of the scheme. The 2004 Amendment Order corrected (a) a typographical error in the original list (the Road Traffic Act 1988 having been referred to as the "Road Traffic Act 1998") and (b) the inadvertent omission of offences of procuring under section 7(1) of the Criminal Law (Consolidation) (Scotland) Act 1995.
10.3 Three distinct issues can be noted regarding the scope of the list of offences prescribed for the purposes of the victim statement scheme.
10.4 First, the list of prescribed offences includes "an offence of conspiring or inciting the commission of a [prescribed] offence", and "an offence of aiding, abetting, counselling or procuring the commission of such an offence". 145 It does not, however, appear to include attempts to commit prescribed offences.
10.5 It has been suggested to the research team that attempts are included in the list of prescribed offences as a consequence of s87 of the 2003 Act (which defines an offence as "any act, attempt or omission punishable by law", as per s307(1) of the Criminal Procedure (Scotland) Act 1995). However, this definition only means that attempts are offences for the purposes of the 2003 Act as a whole. It does not make them prescribed offences for the purposes of the victim statements scheme. This would only follow if the s87 definition equated attempts with complete offences, which it does not.
10.6 Despite this, the guidance issued to pilot site offices on the operation of the victim statements scheme stated that attempts to commit prescribed offences are within the scope of the scheme, and the pilot offices proceeded on this basis. 146
10.7 Second, the list does not include hamesucken 147 (although assault is included). It is sometimes assumed that hamesucken charges are no longer brought, 148 but the researchers noted a number of instances of hamesucken charges in their examination of court sheets at Edinburgh Sheriff Court at an early stage of the research project. 149 Indeed, the data supplied to the researchers indicates that 2 statement packs were actually sent out in a hamesucken case stemming from the Edinburgh pilot site.
10.8 Third, the list does not include housebreaking with intent to steal (although theft by housebreaking is included). The data supplied to researchers indicates that 9 statement packs were sent out in cases of housebreaking with intent to steal, 2 in Ayr and 7 in Kilmarnock. 150
10.9 Following communications between the research team and Crown Office, it has been established that both hamesucken and housebreaking with intent to steal were considered for inclusion in the list of prescribed offences. They were not specifically included in the list of prescribed offences because "the advice given by OSSE solicitors was that both of these would be included in terms of the offences prescribed: hamesucken because it is an assault and HBWI under the ambit of theft by housebreaking." 151
10.10 The research team have some doubts about this interpretation, for the following reasons. First, it is at least arguable that hamesucken has always been regarded as a separate crime from assault under Scots law, 152 as demonstrated by the former practice of charging hamesucken and aggravated assault in the alternative when the former was still a capital offence. 153 (It is, of course, the case that every instance of hamesucken must involve an assault, but equally every instance of robbery must involve an assault, 154 and it was felt necessary to specifically list robbery as a prescribed offence. 155)
10.11 The view that housebreaking with intent to steal is covered by the reference to theft by housebreaking is presumably based on the view that the former is an inchoate form of the latter: that is, it amounts to attempted theft by housebreaking. The appeal court has, however, reserved opinion on the question of whether breaking into a house with the intention of committing a crime therein amounts to an attempt to commit that crime, 156 and so the point cannot be taken as clear-cut. In any case, as noted above, attempts to commit prescribed offences do not appear to be within the scope of the schedule. The issue has been discussed with 2 procurators fiscal from different pilot scheme offices. In one case, the procurator fiscal to whom the researchers spoke was of the view that housebreaking with intent to steal was within the scope of the scheme; in the second, the procurator fiscal was of the view that it was not.
« Previous | Contents | Next »