Scottish Government

SHARING OF INFORMATION BY PUBLIC AUTHORITIES WITH ANTI-FRAUD ORGANISATIONS

The Serious Crime Act 2007 ("the 2007 Act") contains provisions that will enable public authorities to share information with each other and with anti-fraud organisations to help prevent and detect fraud. However, these provisions do not have effect in Scotland for those public authorities who deal with devolved matters.

We will bring forward provisions that will extend the operation of the 2007 Act to cover all of Scotland's public authorities, regardless of whether they operate in a reserved or a devolved area.

Relevant weblinks

http://www.opsi.gov.uk/acts/acts2007/ukpga_20070027_en_6#pt3-ch1-pb1-l1g68

BENEFIT OF MAKING THE PROPOSED CHANGE

Will allow Scottish public authorities to play a leading role in tackling fraud by sharing information with each other to detect fraudulent activity.

DATA MATCHING BY AUDIT SCOTLAND AS PART OF NATIONAL FRAUD INITIATIVE

The Serious Crime Act 2007 ("the 2007 Act") contains provisions that will place the National Fraud Initiative on a statutory footing in England, Wales and Northern Ireland. The National Fraud Initiative is a data matching exercise conducted for the purpose of assisting in the prevention and detection of fraud. Section 73 (and schedule 7) of the 2007 Act contains the statutory framework within which data can be matched, but this section does not have effect in Scotland. The National Fraud Initiative already operates on a non-statutory basis and has identified around £37m of fraud and error in Scotland and led to over 75 prosecutions

We propose to change this position and bring forward provisions that will broadly replicate the 2007 Act provisions for Scotland. We propose that Audit Scotland will be given the power to conduct data matching exercises on its own accord, or to arrange for such exercises to be conducted on its behalf.

Relevant weblinks

Section 73 and Schedule 7 to the Serious Crime Act 2007

http://www.opsi.gov.uk/acts/acts2007/ukpga_20070027_en_6#pt3-ch1-pb2-l1g73

http://www.opsi.gov.uk/acts/acts2007/ukpga_20070027_en_14#sch7

Audit Scotland information on the National Fraud Initiative

http://www.audit-scotland.gov.uk/work/nfi.php

http://www.audit-scotland.gov.uk/docs/central/2008/nr_080515_national_fraud_initiative_pr.pdf

BENEFIT OF MAKING THE PROPOSED CHANGE

Will allow Audit Scotland to continue their efforts to match data to prevent and detect fraud in the public sector.

COMPENSATION FOR MISCARRIAGES OF JUSTICE

We operate two schemes for the payment of compensation as a result of a miscarriage of justice: the statutory scheme under section 133 of the Criminal Justice Act 1988 ("the 1988 Act") and the ex gratia scheme.

Section 133 of the 1988 Act requires the Scottish Ministers to pay compensation for a miscarriage of justice in certain circumstances. This statutory scheme allows compensation to be payable when a conviction has been "reversed" by the High Court on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice.

In addition to the statutory scheme, there also operates an ex gratia scheme. This allows compensation to be paid to individuals who have spent a period in custody following wrongful conviction or charge if that wrongful conviction or charge resulted from "serious default on the part of a member of a police force or of some other public authority". Compensation may also be paid in "exceptional circumstances that justify compensation in cases outside these categories". Compensation is not paid however merely because at the trial or on appeal the prosecution was unable to sustain the burden of proof beyond reasonable doubt.

The terms of the ex gratia scheme were set out in a Parliamentary statement from the then Secretary of State for Scotland, Malcolm Rifkind, on 23 January 1986. The terms of the statement were as follows:

"I [the Secretary of State] will be prepared to pay compensation to people who .... have spent a period in custody following wrongful conviction or charge, where I am satisfied that this has resulted from serious default on the part of a member of the police force or some other public authority; and there may be exceptional circumstances that justify compensation in these cases outside these categories. I will not, however, be prepared to pay compensation simply because at the trial or on appeal the prosecution was unable to sustain the burden of proof beyond reasonable doubt in relation to the specific charge that was brought."

No changes are planned to the terms of the ex gratia scheme, but we intend to place this ex gratia scheme on a statutory footing in the Criminal Justice and Licensing Bill.

Schedule 12 to the 1988 Act contains a reference to the Criminal Injuries Compensation Board. This is a redundant provision as the Criminal Injuries Compensation Board no longer exists and we intend to repeal this reference.

Section 133 of the 1988 Act currently allows for compensation to be paid when an individual has been convicted of a criminal offence and subsequently has had that conviction reversed or they are pardoned. The condition that has to be met is that the reversal or pardon is on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice.

However, section 188 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") allows for a conviction and sentence or both to be set aside by way of a minute without an appeal being heard. We intend to amend section 133 of the 1988 Act in order to allow someone who has had their conviction set aside by way of section 188(1)(b) of the 1995 Act to receive compensation.

Section 133(6) of the 1988 Act states that "…for the purposes of this section a person suffers punishment as a result of a conviction when sentence is passed on him for the offence of which he was convicted." Section 228 and section 246 of the 1995 Act however allow the court to impose a probation order or order absolute discharge instead of a sentence.

As neither section 228 or section 246 of the 1995 Act are sentences, section 133(6) of the 1988 Act would not recognise the person as having been punished, there is still the possibility of reputational harm arising from the conviction.

We intend to include provisions that will make sure convictions resulting in a probation order or absolute discharge can be taken into account for the purpose of section 133 of the 1988 Act.

BENEFIT OF MAKING THE PROPOSED CHANGE

Establishing a simple statutory scheme that covers all possible scenarios where compensation may be paid will lead to more efficient and effective consideration of claims for compensation arising out of miscarriages of justice. The other changes will tidy the law in this area and ensure there are no gaps in the legislation.

GIVING THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION ( SCCRC) THE POWER TO REQUEST INTERNATIONAL CO-OPERATION

The Crime (International Co-operation) Act 2003 (the "2003 Act") enabled the United Kingdom to ratify the 2000 Convention on Mutual Assistance in Criminal Matters between member states of the European Union.

The 2003 Act was limited in scope to implementation of international obligations. It did not extend Mutual Legal Assistance powers to the Criminal Cases Review Commission, and the Scottish Criminal Cases Review Commission ( SCCRC).

In the absence of such a power, the SCCRC have faced problems in securing co-operation from overseas. While it is anticipated that there can be no guarantee that outgoing requests from the SCCRC would be subsequently executed by all countries, it is the case that many have confirmed that they would be able and willing to assist on the receipt of a mutual legal assistance request.

We propose to amend section 7 of the 2003 Act to give the SCCRC a power to allow them to apply to a judicial authority to request mutual legal assistance from other Member States of the European Union.

BENEFIT OF MAKING THE PROPOSED CHANGE

Improving the powers of the SCCRC to investigate alleged miscarriages of justice.

REPEAL OF PARLIAMENTARY REPORTING REQUIREMENT IN CRIMINAL JUSTICE (TERRORISM AND CONSPIRACY) ACT 1998

The Criminal Justice (Terrorism and Conspiracy) Act 1998 (the "1998 Act") was introduced as emergency legislation following the Omagh bombing. The Act contained a package of measures designed to tackle terrorism.

Section 8 of the 1998 Act introduced the requirement for a statutory report on the working of the Act to be laid before both Houses of Parliament not less than once a year. Section 121 of the Scotland Act 1998 widened these reporting arrangements so that the requirement to lay the report became a requirement to lay the report in the Scottish Parliament also.

The UK Government considers this part of the Act to be redundant and this section will soon be repealed for England, Wales and Northern Ireland by the Criminal Justice and Immigration Act 2008. The reporting requirements to Parliament on the operation of terrorism provisions is now provided for by section 36 of the Terrorism Act 2006. The majority of provisions, including section 36, of this Act apply on a UK wide basis.

We therefore propose to repeal section 8 of the 1998 Act as it applies to Scotland as reporting requirements are covered by section 36 of the Terrorism Act 2006.

BENEFIT OF MAKING THE PROPOSED CHANGE

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

AMENDMENTS TO THE POLICE ACT 1997

Scottish Minsters are able to carry out criminal record checks for employment and other purposes under Part 5 of the Police Act 1997 (the "1997 Act"). In practice, this work is carried out by Disclosure Scotland. In doing these checks, Disclosure Scotland check 2 central records - the Scottish Criminal History System and the Police National Computer.

Following on from recent improvements within the EU with regard to the sharing of information about criminal convictions for criminal justice purposes, there has been pressure for access to be obtained to the same information for employment checking purposes. A draft European Union Framework Decision ( EUFD) was published on 30 May 2008 that would, if agreed, lead to a European Criminal Records Information System ( ECRIS) that would help deliver the electronic exchange of information sharing for criminal justice purposes which could be extended into employment checking.

We are keen to gather relevant information from as many sources as possible where that information would be helpful for an employer or for criminal justice agencies. There is a gap in that EU citizens living and working in Scotland (in both paid and/or unpaid posts) are less rigorously checked than UK citizens. This is because Disclosure Scotland does not currently have access to conviction information from other Member States about their citizens who live and work in Scotland. Though discussion of the EUFD is at a very early stage and agreement cannot be assumed at this time, preparation should be made for the potential implementation of the EUFD.

We propose that Scottish Ministers should take an order making power to amend the meaning of certain definitions in the 1997 Act that will allow Scottish Ministers to make a quicker response as and when new sources of information become available. Notwithstanding this draft EUFD, there is nothing within it that prevents bi-lateral agreements being put in place between Member States or indeed other jurisdictions around the world that are willing to share information with Scottish Ministers and therefore this order making power may be used even if the EUFD does not come to fruition.

Scottish Ministers currently charge a one-off fee for registration under section 120 of the 1997 Act and a separate one-off fee for nominees of the registered person. Both groups will have a role once the Protection of Vulnerable Groups (Scotland) Act 2007 is commenced. Once this Act is in force, we intend to offer new services to the registered persons. The new services will come at an additional cost and we wish to ensure that there is sufficient flexibility in the 1997 Act to recoup those costs. Therefore, we propose to amend the power in section 120ZB of the Police Act 1997 to enable Scottish Ministers to make further provision about registration of registered persons, in so far as it relates to making provision regarding the payment fees to provide greater flexibility in the fee charging powers.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will allow Scottish Ministers to make a quicker legislative response as and when new sources of information become available. The wider power will ensure flexibility in the fee charging structure which will assist Ministers to make the system self-funding with a more structured fee system helping ensure efficiency by providing an incentive to registered persons to keep their accounts up to date by removing nominees that are no longer needed.

OPERATION OF PUBLIC DEFENCE SOLICITORS' OFFICES ( PDSOs)

The Public Defence Solicitors' Office ( PDSO) was originally established in 1997 in order to test the feasibility of providing criminal legal assistance through solicitors directly employed by the Scottish Legal Aid Board. The legislation was subsequently amended to allow the feasibility study to continue after 1 October 2003.

We propose to put the PDSO on a more solid statutory footing to enable it to provide criminal legal advice, assistance and representation as a matter of course rather than for the purposes of the feasibility study.

BENEFIT OF MAKING THE PROPOSED CHANGE

To enhance public confidence in PDSO and to assist in the recruitment and retention of its staff by establishing that the PDSO is to provide criminal legal assistance in the future (and is no longer simply to provide criminal legal assistance for the purpose of a feasibility study).

PROVIDE FOR POWER TO GIVE GRANTS TO ORGANISATIONS THAT SUPPORT VICTIMS OF CRIME

At present, grants to organisations providing support to victims of crime are generally made under section 10 of the Social Work (Scotland) Act 1968. This is usually sufficient, but it does limit grants to national organisations or to innovative projects and excludes grants to local authorities. There are occasions where more flexibility would be helpful, such as:-

• Payments to a local authority when it is providing services to victims. Victims of human trafficking often need emergency support once they are recovered. That support is sometimes provided by local authorities in the absence of any other provider, but if the victim has no recourse to public funds the local authority would not be able to support the victims unless funded by central government;
• Support for local organisations if they meet a particular need, such as support for victims of murder in areas where murder is particularly prevalent; and
• Allowing initiatives such as that being developed in England and Wales where the Ministry of Justice allows Victim Support (the equivalent in England and Wales of Victim Support Scotland) to make small payments to victims in certain circumstances.

We propose to give Scottish Ministers the power to allow grants in a wider range of circumstances than is currently possible. The examples above only show potential uses of a wider power to make grants to organisations that support victims and witnesses. Decisions to support any particular initiative would be taken on a case by case basis.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will help ensure funding can be given to a range of organisations that provide different types of support to victims of crime or to witnesses.

EXTENDING PART 1 OF THE VULNERABLE WITNESSES (SCOTLAND) ACT 2004

Part 1 of the Vulnerable Witnesses (Scotland) Act 2004 (the "2004 Act") substitutes new sections 271-271M into the Criminal Procedure (Scotland) Act 1995 (the "1995 Act"). Section 271(1) details the category of people to whom the provisions apply, namely people who are to give evidence at or for the purposes of a trial. It then provides a definition of the term 'vulnerable' and lists factors to be considered in determining whether a witness is vulnerable.

Sections 271A-271M set out what the special measures are to help such people give their evidence and the procedures for applying for these.

Currently, the provisions are restricted to evidence given in trials or for the purpose of a trial. We propose to extend these provisions so that they cover all hearings where a witness could be called to give evidence. This will include hearings such as proofs in mitigation and appeal proceedings.

BENEFIT OF MAKING THE PROPOSED CHANGE

The proposed amendments to the 1995 Act should ensure that the provisions of Part 1 of the 2004 Act will benefit witnesses who are called to give evidence in criminal proceedings other than trials.

RIGHT FOR PROSECUTORS TO APPLY FOR A FINANCIAL REPORTING ORDER

Section 77 of the Serious Organised Crime and Police Act 2005 made provision in Scotland to allow the courts to impose a Financial Reporting Order when dealing with a person convicted of an offence of fraud or an offence specified in Schedule 4 to the Proceeds of Crime Act 2002, if they are satisfied there is a sufficient risk of the person committing another similar offence. This allows the police to monitor the future financial transactions of those subject to a Financial Reporting Order.

At present there is no clear application process. In addition to the power of the court to make such an order, we propose that a power be given to the prosecutor to apply for one to be imposed.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will widen the application process and allow the court to both consider imposing a Financial Reporting Order at the instance of an application from the prosecutor as well on its own initiative.

COVERT AND INTRUSIVE SURVEILLANCE OPERATIONS

The Regulation of Investigatory Powers (Scotland) Act 2000 (the "2000 Act") and Part III of the Police Act 1997 (the "1997 Act") set out the legislative framework for rules for authorising different forms of surveillance in Scotland for a number of public bodies. For the purpose of this proposal, we are concerned with certain types of covert surveillance in Scottish police and SCDEA operations.

Currently, police forces require to obtain authorisation for directed and intrusive surveillance under the 2000 Act and for property interference under the 1997 Act. Forces need to obtain authorisation from their own force command to carry out these forms of surveillance. In terms of operations which involve 2 or more forces (including the SCDEA) 2 or more sets of authorisation are required (ie each force involved must seek their own authorisations).

We propose to allow a lead force to be agreed between the participating forces who can grant a single set of authorisations to be obtained for any force/ SCDEA involved in a joint operation. This authorisation would be limited jurisdictionally to the areas covered by the participating forces.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will allow a single force/ SCDEA to take the lead in gaining the relevant authorisation, thereby reducing the bureaucracy involved in obtaining multiple authorisations.