Revitalising Justice - Proposals To Modernise And Improve The Criminal Justice System

Listen

04: STRENGTHENING THE CRIMINAL LAW

We propose to take forward a number of reforms to the criminal law and these are summarised in this section.

TEST PURCHASING PROVISIONS FOR CROSSBOWS AND PROOF OF AGE FOR WEAPONS

The Crossbows Act 1987 (the "1987 Act") is the only remaining statutory provision relating to age-restricted goods for which it is not legal to operate a test purchasing scheme. A test purchasing scheme allows a child or young person to carry out the purchase of an age-restricted good to check whether the retailer is applying the age restriction in the sale of the good. Crucially, the child or young person is not committing an offence when test purchasing rules are being followed. While it is unlikely that a test purchasing scheme would be established for crossbows alone, it may be desirable to do so as part of a more general scheme relating to the test purchasing of offensive weapons.

We therefore intend to bring forward provision following the test purchasing model in section 102 of the Licensing (Scotland) Act 2005 (the "2005 Act") so that the test purchasing of crossbows is permissible.

The 1987 Act provides a defence to the offence of selling a crossbow to a person under 18 if the seller had 'reasonable ground for the belief' that the person was 18 or over. The Criminal Justice Act 1988 has a similar defence but it has a higher threshold of 'reasonable precautions' and 'due diligence' and we are bringing them into line with the standard set in the 2005 Act.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will allow robust police enforcement of the law in relation to age restrictions on the sale of crossbows. Also modernise 'proof of age' provisions and bring them into line with the 2005 Act.

CLOSURE OF PREMISES ASSOCIATED WITH HUMAN TRAFFICKING OR CHILD SEXUAL EXPLOITATION

Article 23 of the Council of Europe Convention on Action Against Trafficking in Human Beings requires measures necessary to enable the temporary or permanent closing of premises used to carry out trafficking in human beings.

Article 27 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse also requires measures necessary to enable the temporary or permanent closure of establishments used to carry out the offences of child abuse, child prostitution, child pornography, child pornographic performances, corruption of children and grooming.

The Antisocial Behaviour etc. (Scotland) Act 2004 provides for the service of closure notices and the making of closure orders in respect of premises. Section 26 of that Act which provides for closure notices requires reasonable grounds for believing that the premises are associated with antisocial behaviour and the occurrence of relevant harm. Closure orders are provided for in section 30 and require that:

  • a person has engaged in antisocial behaviour on the premises;
  • the use of the premises is associated with the occurrence of relevant harm; and
  • an order is necessary to prevent the occurrence of such relevant harm for the period specified in the order.

Relevant harm is defined in section 40 of the Act and section 143 provides that a person engages in antisocial behaviour if he/she acts in a manner or pursues a course of conduct that causes or is likely to cause alarm or distress to at least one person who is not a member of the household.

While it may be possible to demonstrate that a person is engaging in antisocial behaviour towards a victim through causing alarm and distress it is less likely to be able to demonstrate that the premises are associated with relevant harm as neighbours and the general public may be oblivious as to the use and occupants of the premises.

We propose to make explicit provision within the Antisocial Behaviour etc. (Scotland) Act 2004 for the closure of premises used to carry out the offences specified in the Council of Europe Conventions by providing a new set of circumstances where notices and orders may be invoked for relevant offences in relation to trafficking and child sexual exploitation.

Closure notices would require senior police officers to have reasonable grounds for believing that the premises are associated with the commission of relevant offences while closure orders would require senior police officers to have reasonable grounds for believing that the use of the premises is associated with the commission of relevant offences.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will assist the police in tackling the misery of human trafficking and child sexual exploitation by providing explicit powers for the closure of premises associated with the commission of offences in relation to trafficking of human beings and child sexual exploitation.

POSSESSION OF EXTREME PORNOGRAPHIC MATERIAL

The Scottish Executive issued a joint consultation in 2005 with the Home Office on issues relating to the possession of extreme pornography. This consultation ran until December 2005 and 93 Scottish responses were received.

We have decided to introduce a new offence for the possession of extreme pornographic material. We propose that this offence will criminalise the possession of pornographic images which realistically depict:

  • Life-threatening acts and violence that would appear likely to cause severe injury;
  • Rape and other non- consensual penetrative sexual activity, whether violent or otherwise; and
  • Bestiality or necrophilia.

The maximum penalty for the proposed new offence will be 3 years imprisonment.

We intend that the new offence will be similar to that at section 63 of the Criminal Justice and Immigration Act 2008, which will apply in England, Wales and Northern Ireland. The Scottish offence will go further than that offence, however, in that it will cover all images of rape and non-consensual penetrative sexual activity, whereas the English offence only covers violent rape.

Under section 51 of the Civic Government (Scotland) Act 1982, it is already illegal to publish, sell or distribute or to possess with a view to selling or distributing the material that would be covered by this new offence. We propose to increase the maximum penalty under section 51 of the 1982 Act in respect of extreme pornographic material from 3 to 5 years.

Relevant weblinks

Consultation on the possession of extreme pornographic material - August 2005

http://www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/

Analysis of Scottish responses received to the consultation

http://www.scotland.gov.uk/Topics/Justice/criminal/17543/ExtremePornograhicMateria/AnalysisReport

BENEFIT OF MAKING THE PROPOSED CHANGE

Will help ensure society is protected from exposure to pornography that depicts horrific images of violence.

OFFENCE PROVISIONS IN THE PROTECTION OF CHILDREN AND PREVENTION OF SEXUAL OFFENCES (SCOTLAND) ACT 2005

Sections 9 to 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 established a number of offences relating to the sexual services of children and child pornography. The offences relate to:

  • paying for sexual services of a child (section 9);
  • causing or inciting provision by child of sexual services or child pornography (section 10);
  • controlling a child providing sexual services or involved in pornography (section 11); and
  • arranging or facilitating provision by child of sexual services or child pornography (section 12).

A minor difficulty has been identified with penalties for the offences under sections 9 to 12 of the Act when prosecuted on indictment. The penalty provisions provide that a person is liable on conviction on indictment to imprisonment for a term not exceeding 14 years, except for section 9 offences when involving the sexual services of a child over 16 in which case the maximum term is 7 years. There is no mention of a fine, in contrast to the position in summary procedure, and to most other penalty provisions which generally refer to the imposition of imprisonment, or a fine, or both. In the absence of a reference to a fine, there is no inherent power for the solemn courts in Scotland to impose a fine in place of imprisonment.

We propose to bring forward provisions so that it will be competent for the court to impose an unlimited fine following successful prosecution on indictment, instead of or as well as, imprisonment. While custodial sentences are likely to be appropriate for most offenders, the availability of a fine in solemn procedure will allow the courts to deal with corporate offenders such as companies. This will better meet our international obligations on the criminalisation of the sexual exploitation of children.

BENEFIT OF MAKING THE PROPOSED CHANGE

Regularisation of penalty provisions in sections 9 to 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 ensuring a robust law to deal with sexual offences.

INDECENT IMAGES OF CHILDREN

Under the provisions of sections 52 and 52A of the Civic Government (Scotland) 1982 it is an offence to make, take, distribute, publish or possess indecent photographs or pseudo-photographs of children. A pseudo-photograph is an image which, though not a photograph itself, appears to be one.

The definition of pseudo-photograph does not extend to cover images derived from actual photographs but which do not appear to be photographs themselves. Such images are increasingly easy to make using readily available image manipulation software.

We propose to extend the provisions of sections 52 and 52A of the 1982 Act to cover derivatives of indecent photographs or pseudo-photographs to include, for example, line traced and computer traced images. These derivatives will fall under the scope of sections 52 and 52A of the Act and it will therefore become an offence to make, take, distribute, publish or possess such images.

We also intend to bring forward technical amendments that will clarify certain provisions concerning indecent images of children as they apply for the purposes of Schedule 3 to the Sexual Offences Act 2003. That Schedule lists offences which trigger the notification requirements in Part 2 of that Act. The amendments will remove any doubt that the provisions contained within paragraph 44 of Schedule 3, which refers to Customs legislation about prohibited goods, covers both photographs and pseudo-photographs. Changes are also intended to be made to Schedule 3 to ensure clarity in respect of age thresholds.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will help clarify the law and closes a gap in existing legislation which has developed as technology advances to circumvent the controls already in place.

TERRITORIAL EXTENT OF HUMAN TRAFFICKING OFFENCES

Trafficking for the purposes of prostitution or the making or production of obscene or indecent material is an offence under the provisions of section 22 of the Criminal Justice (Scotland) Act 2003.

Section 22(1) provides that it is an offence for a person to arrange or facilitate the arrival into or travel to the United Kingdom of an individual for the above purposes, including where it is believed that another person is likely to exercise such control or to so involve the individual. Under the provisions of section 22(4) the offence applies whether it is committed within the UK by any person, or outwith the UK by a British national or a UK incorporated body.

Following changes made in the UK Borders Act 2007, we propose to align the wording of the section 22 with that now contained in the Sexual Offences Act 2003 by:

  • extending its scope so that it refers to "entry into" the UK as well as the "arrival in" the UK; and
  • removing the limitation on the territorial application provided under section 22(4) so that the offence applies to anything done whether inside or outside the UK by any person, no matter whether they are in any way connected to the United Kingdom.

We also intend to make it clear that the sheriff court has jurisdiction to deal with these offences.

BENEFIT OF MAKING THE PROPOSED CHANGE

Clarify the law so that where a person outwith the UK undertakes trafficking activities and an individual is trafficked to, within or out of the UK then that will constitute an offence under Scots law. Extends the offence provision so that it covers any act of facilitation of a person into the UK following his arrival here.

CONSPIRACIES TO COMMIT CRIMINAL ACTS IN PARTS OF THE UK OTHER THAN SCOTLAND

Section 11A of the Criminal Procedure (Scotland) Act 1995 deals with conspiracies to commit offences. This section was inserted by section 7 of the Criminal Justice (Terrorism and Conspiracy) Act 1998.

In essence, it provides that conspiracy in Scotland to commit an offence outwith the United Kingdom is itself an offence, provided that the criminal purpose being conspired would constitute an offence in the place where it was intended to be carried out. For example, a conspiracy formed in Scotland to bomb airliners in the United States would be an offence in Scotland. A gap in law has been identified in that section 11A does not provide statutory coverage for conspiracies formed in Scotland to commit offences in England, Wales or Northern Ireland.

In light of the Glasgow and London bombings, the law on extraterritorial offences was reconsidered. Clause 28 of the Counter-Terrorism Bill contains provisions which allow for proceedings to be taken in any part of the United Kingdom for terrorist offences (including conspiracy) regardless of where in the United Kingdom the offence is committed.

Scottish courts can assert jurisdiction and rely on common law procedures to deal with conspiracy, for example, a conspiracy formed abroad but the prospective act, which constitutes a crime under Scots law, was intended be committed in Scotland. However, there is sufficient doubt that exists about the jurisdiction of Scottish courts to deal with conspiracies to commit offences in England, Wales and Northern Ireland.

We also propose to amend section 11A of the Criminal Procedure (Scotland) Act 1995 so that it applies to conspiracies in Scotland to commit offences in other parts of the United Kingdom, which in turn will mean section 11A can be used to deal with conspiracies to commit offences in any part of the world furth of Scotland.

BENEFIT OF MAKING THE PROPOSED CHANGE

Addresses a loophole in the law, provides clarity for Scottish courts to deal with conspiracies in Scotland to commit criminal acts elsewhere in the United Kingdom.

MISCARRIAGES OF JUSTICE WHERE CASES REFERRED BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION: GROUNDS FOR APPEAL

The Scottish Criminal Cases Review Commission ( SCCRC) was established in 1999 by section 194A of the Criminal Procedure (Scotland) Act 1995. It is an independent public body which impartially reviews cases submitted by applicants convicted of a crime in a Scottish court where there may be possible grounds for considering a miscarriage of justice has occurred. The Act enables the SCCRC, if it thinks fit, to refer any conviction or sentence passed on a person to the High Court for further consideration. This covers cases where an appeal against such conviction or sentence has been heard and determined already by the High Court, but can also include cases where no appeal has been heard.

The grounds upon which the SCCRC may refer cases is set out at section 194C of the Act and are as follows:

  • That a miscarriage of justice may have occurred; and
  • That it is considered in the interests of justice that a reference should be made

The SCCRC is required by section 194D(4) to provide the Court with a statement of their reasons for making the reference. The practice of the SCCRC is to consider the possible grounds for a miscarriage of justice submitted by the applicant, and any other grounds that the SCCRC may itself identify during their consideration of the case. The SCCRC's statement of reasons is submitted which sets out the grounds on which the case is being referred alongside a referral. In practice, difficulties have emerged in that the appellant, in pursuing his appeal, can depart from the grounds on which the SCCRC has made the referral. This can include seeking to make a case on grounds that have already been discounted or rejected by the SCCRC, which in turn, can potentially have a significantly negative impact with regard to the use of court time.

We therefore propose to establish a process whereby an appeal, following a reference made by the SCCRC, can only be based on the statement of reasons given in the SCCRC referral, subject to the power of the court to allow other grounds to be argued.

BENEFIT OF MAKING THE PROPOSED CHANGE

The change would bring about a more streamlined appeals procedure to assist courts in making the best use of their time in dealing with cases referred by the SCCRC.

DEALING IN TAINTED CULTURAL OBJECTS

In 2003 the UK Parliament passed the Dealing in Cultural Objects (Offences) Act (c.27) which does not extend to Scotland. This Act was introduced shortly after the UK ratified the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import and Transfer of Ownership of Cultural Property. The UK Government set up a Ministerial Advisory panel which reported on the implementation of this Convention in December 2000. Although this advisory panel indicated that no new legislation was required in the UK to ratify the Treaty, they did suggest that the creation of an offence of dealing in tainted cultural objects would complement the Treaty obligations and reinforce implementation in the UK.

The then Scottish Executive took the decision Scotland would devise its own legal solution that would be dealt with through legislation in the Scottish Parliament. The decision was taken that it would be appropriate to legislate for this issue in the proposed Culture Bill.

Upon coming to office the current Scottish Government took the decision to proceed with a shorter and more focused version of the Culture Bill which provided for the establishment of Creative Scotland from a merger of Scottish Screen and the Scottish Arts Council. Ministers stated at that time that they remained sympathetic to the purposes of the legislation relating to tainted cultural objects and we will include suitable provisions in the Criminal Justice and Licensing Bill.

The original policy was consulted on as part of the broader consultation on the previous administration's draft Culture Bill. Respondents to this section of the consultation were largely favourable to the proposal to create a new offence similar to that brought in by the 2003 Act in the rest of the UK. Following responses made to the consultation we have decided that reporting requirements shall be prescribed for findings of cultural objects and the dishonest dealing of cultural objects which are unreported is to be made an offence.

Relevant weblinks

Scottish Executive consultation on draft Culture (Scotland) Bill* - December 2006

http://www.scotland.gov.uk/Resource/Doc/160710/0043681.pdf

(* Page 12 is the relevant page that covers the issue of tainted cultural objects)

BENEFIT OF MAKING THE PROPOSED CHANGE

Creation of a clear offence of dealing in tainted cultural objects and unreported cultural objects will assist in tackling those who seek to profit from Scotland's national heritage. It would also bring Scotland into line with provisions in the rest of the UK as well as complement the UNESCO Treaty obligations.

IMPROVING CRIMINAL LAW

Overview

A major consolidation exercise of Scottish criminal law and procedure was carried out in 1995. The then existing law was consolidated by the combined effect of the Criminal Procedure (Scotland) Act 1995, the Criminal Law (Consolidation) (Scotland) Act 1995, the Criminal Procedure (Consequential Provisions)(Scotland) Act 1995, and the Proceeds of Crime (Scotland) Act 1995.

The Criminal Law (Consolidation) (Scotland) Act 1995 consolidated certain enactments creating offences and relating to the criminal law in Scotland. In essence, this was a tidying up exercise, which made no changes to existing law and covered a wide range of subject matters.

Specific changes

This consolidation exercise included consolidation of the False Oaths (Scotland) Act 1933. Consequential provisions required as a result of this exercise were provided for in the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995. It has emerged that a minor error occurred during this consolidation exercise. Schedule 5 to the Criminal Procedure (Consequential Provisions) (Scotland) Act, containing the list of repeals, should have included a reference to the False Oaths (Scotland) Act 1933. This was however omitted, and the 1933 Act remains in force alongside its intended replacement. We therefore propose to repeal the 1933 Act in full. Appropriate consequential amendments will also be made where reference is made to the 1933 Act in other pieces of legislation.

Section 16 of the Criminal Law (Consolidation) (Scotland) Act 1995 allows any parent, relative, guardian or person acting in the best interests of a woman or girl to ask for a warrant to be issued. This warrant will authorise a named constable to enter a specified place and search for that woman or girl where they believe she is unlawfully being held for immoral purposes. If the woman or girl is found she will be delivered to her parents or guardians. There is also a right afforded to the person requesting the warrant to accompany the constable when the warrant is executed. The wording of the provision has remained almost unchanged since its original enactment in 1885.

This provision is no longer of any practical value. The police already have the power to request warrants for circumstances such as this and we therefore intend to repeal section 16 of the 1995 Act.

Sections 27 to 30 of the Criminal Law (Consolidation) (Scotland) Act 1995 provide the Lord Advocate with special investigatory powers to deal with serious or complex fraud. They re-enact sections 51 to 54 of the Criminal Justice (Scotland) Act 1987, as amended by the Criminal Justice and Public Order Act 1994.

Schedule 5 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 lists the provisions which were repealed as part of the consolidation exercise. The omission of sections 51 to 54 of the 1987 Act from the Schedule is an error and we intend to correct this now by repealing sections 51 to 54 and any amending enactments.

BENEFIT OF MAKING THE PROPOSED CHANGE

A tidying up of the law, reducing the risk of confusion and error.