PROTECTION OF EMERGENCY WORKERS
A Consultation Paper
This document is also available in pdf
format (129k)
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
.
| 
