The Scottish Government

RECORDING OF RACIAL AND RELIGIOUS HATE CRIME AGGRAVATIONS

Section 96 of the Crime and Disorder Act 1998 provides that when an offence is racially aggravated the court shall, on convicting a person, take the aggravation into account in determining the appropriate sentence.

Section 74 of the Criminal Justice (Scotland) Act 2003 provides that when an offence is religiously aggravated the court shall, on convicting a person, take the aggravation into account in determining the appropriate sentence.

The Offences (Aggravation by Prejudice) (Scotland) Bill (introduced into the Scottish Parliament on 19 May 2008) creates statutory aggravations for offences motivated by hostility or ill will towards a victim based on the victim's actual or perceived sexual orientation, transgender identity or disability. The provisions of the Offences (Aggravation by Prejudice) Scotland Bill require that the court must take the aggravation into account in determining sentence. Where the sentence is different as a result of the aggravation, the court must state and record the extent of, and reasons for, that difference or the reasons for there being no difference. We will provide that where an offender is found guilty of an offence to which racial and religious aggravations apply, the impact of the aggravation on the sentence is stated and recorded in the same way.

BENEFIT OF MAKING THE PROPOSED CHANGE

This will harmonise the application of hate crimes legislation across the statute book and improve the recording of racially and religiously aggravated offences and convictions. It will also ensure that it is made explicit at the point of sentence that racially and religiously aggravated crime will be punished accordingly.

MODIFICATION OF HOW COMPENSATION ORDERS OPERATE

The primary purpose of compensation orders is to give a certain amount of financial compensation back to victims of crime for any personal injury, loss or damage caused directly or indirectly; or alarm or distress caused directly to the victim resulting from that offence or any other offence which is taken into consideration by the court in determining the sentence.

We propose to widen the circumstances in which criminal courts may make compensation orders. We propose to do this in the following ways:

• Allowing compensation orders to be made in respect of bereavement and the cost of funeral expenses and to make compensation orders available against an offender if they have a traffic accident and are uninsured, including covering the expenses of the preferential insurance rates lost by the victim, if applicable;
• Making it easier for courts to award compensation orders by decoupling them from civil proceedings (where existing legislation allows a compensation order to be discharged or reduced if there is a subsequent civil determination that the amount awarded in the criminal case was too high);
• Allowing the earnings of an offender (contingent on employment on release from custody) to be taken into account when deciding compensation; and
• Allowing courts to review an award of compensation in cases where an offender has had a substantial increase in means.

Sheriffs and stipendiary magistrates currently have powers to impose exceptionally high maximum fines for some offences, which exceed the standard limits set for summary courts. Compensation orders are however currently restricted to standard limits and we intend to remove that restriction.

BENEFIT OF MAKING THE PROPOSED CHANGE

Improving the criminal courts' flexibility to award compensation will help allow victims of crime to achieve greater satisfaction in the criminal courts.

CRIMINAL NON HARASSMENT ORDERS

Section 11 of the Protection from Harassment Act 1997 (the "1997 Act") amends the Criminal Procedure (Scotland) Act 1995, by inserting a new section (section 234A) to allow criminal courts to make Non-Harassment Orders ( NHOs) after convicting a person of a criminal offence involving harassment. This section refers back to the definition of harassment contained in section 8 of the 1997 Act (which is concerned with civil NHOs).

Responses to the 2001/2002 consultation on stalking and harassment in Scotland identified a number of issues relating to the usefulness and workability of criminal NHOs. This included the need for prosecutors seeking a criminal NHO to be able to provide evidence of a course of conduct which has amounted to harassment before a judge can even consider the imposition of an NHO.

The effect of this is that there must be evidence on the basis of at least two incidents for which an offence is being prosecuted. The offence must itself involve conduct on at least two separate occasions if, following conviction, an NHO is to be considered. For example, if an offender is charged and prosecuted for one incident of breach of the peace, then proceedings for obtaining an NHO cannot even begin because the offence for which the offender has been convicted does not in itself demonstrate a course of conduct.

We propose to remove the precondition for a course of conduct amounting to harassment in the consideration of criminal NHOs.

There is also concern at the difficulty in using previous convictions as evidence of a course of conduct or to strengthen a case for a NHO. Information about previous convictions can be invaluable in demonstrating the propensity for an offender to commit crimes of harassment in general or to target the same victim repeatedly. Either way, it would be useful if judges were able see the pertinent details of previous convictions while deliberating on NHOs, rather than simply the list of previous convictions, which is standard practice.

We propose to amend the legislation on criminal NHOs to ensure that courts should have regard to previous convictions and allow judges access to relevant information to assist in deciding whether to impose an NHO.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will make it more straightforward for prosecutors to obtain criminal NHOs against offenders so that victims are protected from further harassment and repeat offending.

INCLUSION OF "SIGNIFICANT SEXUAL ELEMENT" IN CRITERIA FOR IMPOSING EXTENDED SENTENCES

Section 210A of the Criminal Procedure (Scotland) Act 1995 provides the courts with the power to impose additional post release supervision on sex and violent offenders where it considers that additional supervision is necessary to protect the public from serious harm from the offender following release. The maximum extension period is 10 years. Extended sentences may be imposed only in indictment cases and on the imposition of a determinate custodial sentence of 4 years and over for a violent offence. There is no minimum determinate custodial term for sexual offences.

We propose to extend this power to allow the courts, in appropriate circumstances, to impose an extended sentence where a person is convicted of an offence which discloses, in the court's opinion, a significant sexual aspect to the offender's behaviour but which is not otherwise covered by the current definitions of "sexual offence" and "violent offence" in section 210A of the Criminal Procedure (Scotland) Act 1995.

Sentencers are currently unable to impose an extended sentence, for example, in respect of a conviction for a breach of the peace where there was a significant sexual element to the offence. The anomaly of the present situation is also demonstrated by the requirement in section 21 of the Criminal Justice (Scotland) Act 2003, for certain reports to be produced where an offence has a significant sexual element and also by the possibility that the court may put the person on the "sex offenders' register" by virtue of an offence with a significant sexual aspect under paragraph 60 of Schedule 3 to the Sexual Offences Act 2003.

We propose that the absence of a power to impose an extended sentence where the court considers there was a significant sexual element to the offender's behaviour requires to be remedied and we will bring forward renewal provisions.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will provide an additional power to allow courts to impose an extended sentence on offences which disclose a significant sexual aspect to the offender's behaviour. This will plug a gap in existing legislation and add to public protection.

SEXUAL OFFENCES PREVENTION ORDERS ( SOPOs)

A Sexual Offences Prevention Order ( SOPO) is a civil preventative order designed to protect the public from serious sexual harm. They were introduced in the Sexual Offences Act 2003 (the "2003 Act") as a replacement, with some amendments, to sex offender orders.

A SOPO imposes prohibitions on a person who poses a risk of serious sexual harm. A SOPO could, for example, be used to prohibit a sex offender from being alone with children under the age of 16 and from loitering outside school playgrounds where his behaviour suggests that he is likely to re-offend. The granting of a SOPO makes the offender subject to the notification requirements set out in Part 2 of the 2003 Act. Breach of the prohibitions provided by a SOPO is punishable by a maximum of 5 years imprisonment.

Under existing arrangements, SOPOs can be imposed in the Scottish courts as set out in Part 2 of the 2003 Act. There are two ways to proceed; first, the court itself can make an order when dealing with a "defendant" for a range of specified offences. Second, the chief constable may make a summary application to the sheriff for the imposition of an order. It is proposed to widen the application process, so that in addition to the existing power of the court to make an order, a power would be given to the prosecutor to apply for a SOPO to be imposed at the point where he moves for sentence.

In reviewing the implementation of the 2003 Act, an anomaly in the law has been identified relating to the thresholds which apply in certain circumstances before a SOPO may be made. An offender who has been convicted of a sexual offence listed in Schedule 3 which is subject to age or sentence thresholds may not be made subject to a SOPO where the age or sentence thresholds are not satisfied. In contrast under paragraph 60 of Schedule 3 an offender who commits an offence which is not sexual in nature but which has a significant sexual aspect to his behaviour may be made subject to a SOPO.

We propose to disapply the age and sentence thresholds for the purposes of the making of a SOPO in respect of any person. This issue was very recently addressed for England, Wales and Northern Ireland by the Criminal Justice and Immigration Act 2008. The change will provide the court with the discretion to impose a SOPO in all cases where there is evidence of a real risk of serious sexual harm.

We intend to expand the content of the SOPO to allow for appropriate restrictions and obligations/requirements (e.g. a requirement to produce documentation or provide information) to be set. This would place greater responsibility on offenders to comply with certain conditions, as opposed to simply being subject to a particular prohibition.

Some other minor inconsistencies in the 2003 Act will also be addressed.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will ensure a robust criminal law in respect of the operation of SOPOs.

ALCOHOL NOT BEING A MITIGATING FACTOR FOR OFFENDING

We are concerned that voluntary intoxication by alcohol is often presented to the courts as an excuse for offending behaviour with the aim of reducing a sentence. We know that this concerns a great many people in Scotland - particularly in relation to violent crime. The recent consultation paper, "Changing Scotland's Relationship with Alcohol" set out that in 2006-07 it cost the criminal justice and emergency services £385 million to deal with the effects of alcohol misuse. A survey by the Scottish Prison Service found that almost half of those serving a custodial sentence said that they were drunk at the time of the offence. There is also evidence from Strathclyde Police that of the 5,000 prisoners processed by one Glasgow police station in 2006-07, over 60% were under the influence of alcohol or drugs. The same study revealed that two-thirds of those detained for violence were under the influence of alcohol at the time they committed their offence.

To make clear that being under the influence of alcohol cannot be an excuse for offending behaviour, we propose to enshrine in statute that the commission of an offence while voluntarily under the influence of alcohol should not be considered as a mitigating factor by the courts when sentencing an offender.

A consultation paper outlining the detail of our proposals was published on 1 September 2008.

Relevant weblinks

Scottish Government consultation on the creation of a Scottish Sentencing Council - September 2008

http://www.scotland.gov.uk/Publications/2008/08/29100017/0

Changing Scotland's Relationship with Alcohol - June 2008

http://www.scotland.gov.uk/Publications/2008/06/16084348/0

BENEFIT OF MAKING THE PROPOSED CHANGE

Will confirm in law that voluntary intoxication cannot be presented in court as a mitigating factor in relation to sentencing. This will help send the message that the criminal justice system will not tolerate the excuse of being drunk to be used in mitigation of a sentence.

EARLY REMOVAL OF PRISONERS FROM SCOTLAND

We intend to increase the range of options for the early removal of foreign national prisoners held in Scotland.

While "domestic" prisoners can be placed on Home Detention Curfew and curfewed to their home address, foreign prisoners are often either subject to deportation on release, or have no address in Scotland to which they can be curfewed, and have to remain in prison until they reach the point at which they are automatically released. We intend to expand the range of options available by bringing forward provisions that will give Scottish Ministers discretionary powers to release early a prisoner, subject to the requirement that they are liable for removal from the UK or have the settled intention of residing permanently outside the United Kingdom once removed from prison. This will mirror a scheme that already exists in England and Wales for prisoners liable for removal from the UK, which is being expanded by the Criminal Justice & Immigration Act 2008.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will remove criminals from the country who wish to leave when coming towards the end of their custodial sentence thus freeing up valuable prison resources.