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EE/S3/10/R9

9th Report, 2010 (Session 3)

Stage 1 Report on the Protection of Workers (Scotland) Bill

CONTENTS

Introduction

Background
Purpose of the Bill
Committee consideration

Background to the Bill

The consultation process

The General Principles of the Bill: Key Issues

Policy intention
General reaction to the Bill
Providing a deterrent
Equity
Enforcement
Hindrance and obstruction
The scale of the problem and under-reporting
Existing provisions
Emergency Workers (Scotland) Act 2005
Analysis of the effectiveness of the EWA

Alternative approaches

Preventative measures
Sentencing and prosecution guidelines
Definition of worker
Definition of assault
Definition of member of the public
Subordinate Legislation Committee Report

Financial Memorandum

Policy Memorandum
Conclusion on the general principles of the bill

Remit and membership

Remit:

To consider and report on the Scottish economy, enterprise, energy, tourism and all other matters falling within the responsibility of the Cabinet Secretary for Finance and Sustainable Growth apart from those covered by the remits of the Transport, Infrastructure and Climate Change and the Local Government and Communities Committees.

Membership:

Ms Wendy Alexander
Gavin Brown
Rob Gibson (Deputy Convener)
Christopher Harvie
Marilyn Livingstone
Lewis Macdonald
Stuart McMillan
Iain Smith (Convener)

Committee Clerking Team:

Clerk to the Committee
Stephen Imrie

Senior Assistant Clerk
Joanna Hardy

Assistant Clerk
Diane Barr

Stage 1 Report on the Protection of Workers (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

Background

1. The Protection of Workers (Scotland) Bill1 (SP Bill 47) (“the Bill”) was introduced to the Scottish Parliament by Hugh Henry MSP on 1 June, 2010. The Bill was accompanied by Explanatory Notes2 (SP Bill 47-EN), including a Financial Memorandum, and a Policy Memorandum3 (SP Bill 47-PM). The Explanatory Notes have been prepared by Hugh Henry MSP and the Policy Memorandum has been prepared by Govan Law Centre on behalf of Hugh Henry MSP.

2. On 9 June 2010, under Rule 9.6 in the Parliament’s Standing Orders, the Parliament agreed that the Economy, Energy and Tourism Committee (“the Committee”) be appointed as the lead committee to consider and report on the general principles of the Bill at Stage 1.4

Purpose of the Bill

3. The Bill proposes to create a specific statutory offence of assault on a worker whose employment involves dealing with members of the public. By creating a specific offence, the Bill seeks to highlight the problem of assaults on a particular group of people and to provide a deterrent to those who might otherwise commit acts of violence against them.

Committee consideration

4. The Committee issued a call for evidence on 9 July, 2010, and received a total of 12 written submissions. Copies of the written submissions are attached in Annexe D.

5. The Committee agreed its approach to evidence-taking on 15 September, 2010, and took evidence at 4 meetings. Extracts from the minutes of the oral evidence sessions are attached in Annexe B and the Official Reports of the oral evidence sessions are attached in Annexe C. The Committee would like to express its thanks, both to those who submitted written evidence, and to those who took part in the oral evidence sessions.

BackgRound to the bill

6. During the passage of the then Scottish Executive’s Emergency Workers (Scotland) Bill in 2005, it was argued by some that statutory protection should be extended to other public service workers and/or to other workers providing a service to the public. These proposals were rejected by the Scottish Ministers at the time.

7. Hugh Henry MSP subsequently secured a parliamentary debate on the topic of protection for workers shortly before the introduction of this Bill. During that debate, Mr Henry MSP referred to the protection afforded to emergency workers under the Emergency Workers (Scotland) Act 2005 (“EWA”)5 and argued that such protection should be extended to other workers who provide a service to the public—

“The time is right to draw on the benefit of our experience and take the next step, by ensuring that all workers who are assaulted while they are serving the public receive the same level of support as we give to emergency workers.” 6

8. During the debate, the Cabinet Secretary for Justice, Kenny MacAskill MSP, paid tribute to the work of Hugh Henry MSP in promoting the protection of workers, but stated that he was more cautious in relation to whether further criminal offences were needed—

“The common law of assault and the common law of breach of the peace offer protection to everyone in Scotland, including public-facing workers … It is not clear that the proposed bill can provide for tougher sentences, given the range of penalties that are already available under the common law. However, as I said, we will carefully study the detail of the bill when we see it.”7

The consultation process

9. Hugh Henry MSP carried out a consultation between 22 June and 25 September, 2009, on his proposal for a member’s bill to provide similar protection to that available to emergency workers. The initial proposal was for a Workers (Aggravated Offences) (Scotland) Bill to introduce an offence of “assaulting, obstructing or hindering someone who is acting in their capacity as a worker while providing a face to face service to the public”.

10. The consultation paper on his Bill sought views on 7 specific questions, namely:

  • Are there any other groups of worker that you think should be captured in the Bill?
  • How effective have you found the Emergency Workers Act 2005?
  • Do you think there will be additional costs associated with this bill and in what areas will they arise?
  • Are the penalties proposed in this document sufficient, and if not, what penalties would you propose?
  • Do you have any other comments or views on extending the tougher penalties contained in the Emergency Workers Act 2005, to workers providing a face to face service to the public?
  • In what ways will the proposed Bill extend equal opportunity provisions and should it go further?
  • Should hindrance and/or obstruction of the workers specified in this proposal be included in this proposed bill in the same way as is in the Emergency Workers Act?

11. According to the summary of responses to the consultation prepared by Mr Henry MSP, 177 (92%) supported the proposal, 6 (3%) expressed opposition and 9 (5%) offered neither support nor opposition to the proposal8.

12. With regards to the inclusion of hindrance and/or obstruction in the Bill, the consultation response document9 stated that 18 out of the 25 respondents who expressed a view were in support of its inclusion. Those who argued against inclusion did so on the grounds that this was less serious than hindering or obstructing an emergency worker and that workers had the option to withdraw services.

13. After a final proposal had secured cross-party support from 44 MSPs, a revised version of the Bill was introduced by Hugh Henry MSP on 1 June, 2010. The Bill was renamed the Protection of Workers (Scotland) Bill and the offence within it had changed to “assault certain persons in the course of or by reason of their employment”. The obstruction and hindrance provisions that had previously been part of the consultation process had been removed.

14. The Economy, Energy and Tourism Committee considers that the consultation that has been conducted by the member in charge of the Bill on his proposals has been adequate.

THE GENERAL PRINCIPLES OF THE BILL: KEY ISSUES

Policy intention

15. A key rationale for the introduction of the Bill was the perception that there was insufficient protection for those providing vital services to the general public and communities amid a rise in attacks. The Policy Memorandum suggests that it is workers in certain sectors, who are not covered by the EWA, who are experiencing the increase in assaults. The Bill’s policy memorandum states—

“While shop workers and local government workers have experienced a general upward trend in the number of assaults, there has been a simultaneous reduction in the number of assaults perpetrated against those health workers covered by the EWA.” 10

16. The member in charge of the Bill suggests that if similar protections to those afforded to emergency workers were available for all workers who dealing face-to-face with the public, this would have a deterrent effect, thereby reducing the number of attacks on workers and their equipment.

17. According to the provisions in the Bill, a worker must be physically present in the same place as members of the public at least some of the time to be covered by the legislation. However, the offence can be committed against that worker at any time while at work, or at any other time if the motivation of the person carrying out the assault relates to the worker’s employment.

18. According to the Financial Memorandum, “It is intended that the Bill will have a deterrent effect, reducing the number of attacks on workers serving the public, thereby leading to some savings in resources”.11

General reaction to the Bill

19. The majority of responses to the Committee’s call for written evidence welcomed the intent of the Bill as an attempt to provide additional protection for workers providing a service to the public. However, not all agreed that the introduction of this Bill was the best method of achieving that aim. Additionally, many respondents sought greater clarity in terms of more detailed definitions for a worker, a member of the public and what constituted an assault. In oral evidence to the Committee, many witnesses requested that the Bill be more focused, to assist the police in determining which offence the person is to be charged with and for the Crown in prosecuting.

Providing a deterrent

20. A key argument advanced by those supporting the Bill is that the Scottish Parliament would, by passing it, provide a deterrent by sending out a strong public policy message that assaults on workers providing a service to the public are taken seriously and will not be tolerated. The Committee heard evidence from both employers and unions on the need for a change in the current public perception that there appears to be no sanction for abusing a worker if they are unhappy with the service they have received. Jackson Cullinane, of Unite the Union, explained—

“The bill is trying to address the thought and the culture that exists among some members of the general public that somebody who provides a public service to them is an easy target and, if they do not get 100 per cent satisfaction from that person, they can take out their anger on them and abuse them.”12

21. Sam Jennings, Health and Safety Manager at Capability Scotland, told the Committee—

“We feel that the bill could act as a deterrent, with campaigning and publicity, and that we could use it to step in at an early stage and say to people that if their behaviour continued, we had the option of prosecuting.”13

Equity

22. Another key argument raised by the Bill’s supporters is that all workers who provide a service to the public should be treated equally, regardless of their profession and that there should be similar legislation for those workers providing a service to the public as there is for those providing emergency services. However, the Committee heard conflicting views on this issue.

23. David Dalziel, Chief Fire Officers Association Scotland, told the Committee, for example, that all workers do not face the same threat of assault as those in the emergency services—

“We have less opportunity to walk away than workers in static situations such as those in benefits offices who have screens, CCTV and security guards. We cannot take all of that to incidents. The case can be made that there is a difference between us.”14

24. Another viewpoint was that equity already existed in terms of the sentences that could be imposed under common law assault or EWA legislation. When the provisions of the EWA came into force, they provided for a maximum custodial sentence of nine months. Given that the offences in the EWA are prosecuted under summary procedure, this represented a higher maximum than was available at that time for a summary conviction of common law assault, where the maximum sentence was three months (or six months where the offender had a previous conviction for an offence inferring personal violence). However, more recently the Criminal Proceedings etc (Reform) (Scotland) Act 2007 has increased both sets of penalties so that a conviction for an offence under the EWA and a summary conviction for common law assault both carry a maximum custodial sentence of 12 months. It was, therefore, argued by some giving evidence to the Committee that there is already equity within current law.

25. The member in charge of the Bill, Hugh Henry MSP, argued that some workers who are not covered by the EWA can find themselves dealing with emergency situations as part of their role, for example, when dealing with a train derailment the police and fire service staff are covered by the EWA, but the train staff are not. Mr Henry told the Committee that this did not seem equitable. Julie McComasky, Head of Human Resources at First ScotRail, agreed—

“Given that an assault or attempted assault can cause an emergency situation, it does not really seem fair that those workers do not have the same protection.”15

26. The Committee agrees that although the Bill does not introduce any additional, more severe penalty, a public policy message that abuse or assault of workers whilst dealing with the public is unacceptable is nonetheless important.

Enforcement

27. A number of witnesses raised issues relating to how the proposed legislation might operate in practice and some potential barriers. The Bill as drafted states that an assault is deemed to have taken place if it is either in the course of that worker’s employment (s1(1a) of the Bill), or by reason of that worker’s employment (s1(1b)). The issue of whether any successful prosecution under the Bill would have to include proof that the accused knew that the victim was acting in the course of their employment and, if so, the problems this could pose for the police, was raised in evidence. Robert Milligan of the Scottish Police Federation told the Committee that—

“We are also concerned about the difficulty of proving motivation. Instead of dealing with the common law, which requires us to prove an assault, a breach of the peace or threats, we will have to find time to prove motivation. We are concerned that our members' jobs are becoming harder and more time consuming.”16

28. Bill McVicar of the Law Society of Scotland told the Committee that proving the knowledge of the accused would be difficult during prosecution. He said that—

“….the prosecution would need to prove the proximity of the individuals, the status of the complainer as an employed person or a worker, and the knowledge on the part of the accused person.”17

29. The Committee heard that the application of the Bill to workers who did not wear uniforms (unlike emergency workers) and who were not on duty at the time of the assault would make proving motivation very difficult. This, however, was not a fundamental issue for the Committee.

30. The Committee appreciates the concerns raised with regards to proving the motivation for an assault was as a result of the person’s employment and the subsequent difficulties for the police and prosecution service. However, the Committee notes the evidence from Alan McCreadie of the Law Society of Scotland that the prosecutor could still seek a conviction for common law assault if unable to prove the offence in the Bill—

“If the fiscal depute was not able to secure a conviction under what would be the Protection of Workers (Scotland) Act, he or she would simply have to ask the court to convict under the common-law offence. When the Crown seeks a conviction in a case in which a statutory offence has, for some reason, not been made out, it is entitled to ask for an alternative charge of common-law assault at the end of the case.”18

31. A further issue considered by the Committee was the proposal that evidence from a single source will be sufficient to establish whether a person is a worker (section 1(4) of the Bill). The Committee notes that whilst the proposal represents an exception to the general rule that essential elements of an offence must be established by evidence from at least two sources (i.e. there must be corroboration), the particular exception provided for in the Bill follows a similar approach to that found in a number of other statutes (e.g. in section 4(6) of the EWA).

Hindrance and obstruction

32. Those witnesses who were looking for parity with the provisions in the EWA told the Committee that they would like hindrance and obstruction included in the Bill. The EWA provides protection from not only hindrance and obstruction of emergency workers, but also, to damage to a vehicle, equipment or apparatus that a worker is using. Dave Watson of Unison Scotland—

“From our point of view, what is useful about the EWA is that it deals not just with physical assaults but with hindering and obstruction. We would like the bill to be strengthened on that, too.”19

33. Other evidence has raised concerns about any such amendment. The written submission from ACPOS stated that—

“There may also be significant issues with extending the use of the offences of hindrance/obstruction when applied to general public facing employees. The interpretation of what would merit hindering or obstructing a bus driver or shop worker for example, is open to interpretation and in some cases could criminalise extremely minor acts.”20

34. The Committee heard evidence from Hugh Henry MSP that this was an issue that merited consideration at stage 2 of the Bill—

“If others wished to articulate an argument about hindrance and obstruction at stage 2,—if it ever gets to that stage—I would be sympathetic to it, but it would be a matter for Parliament to determine rather than me, because we would have reached a different stage in the process.”21

35. The Committee notes that the addition of hindrance and obstruction could go some way to answering the criticism made by some of the Bill that it simply criminalises that which is already criminal under the common law. However, the Committee also recognises that any such amendment would require very careful consideration.

The scale of the problem and under-reporting

36. The Committee heard conflicting evidence regarding the scale of the problem. Many witnesses provided evidence of under-reporting of incidents due to the view amongst some workers that unless a physical assault was involved, the offence was not taken seriously by the Crown Office.

37. Colin Borland of the Federation of Small Businesses, stated that—

“Unfortunately there is massive underreporting of incidents. It is difficult to get reliable figures, but when we ask about the issue about three times as many people say that they have been subjected to such behaviour as have actually reported it to the police. When we ask them why they have not done so, the strong feeling that we get is that the incident would not be treated sufficiently seriously.”22

38. In further evidence from Jackson Cullinane of Unite, the Committee heard that—

“Another survey, by First Glasgow staff, showed that 57 per cent of staff said that they expected to be attacked or abused in the course of their work. That is clearly not acceptable. When those staff are asked why they have not reported the incidents, they clearly say that it is because they believe that no attempt is made to apprehend or punish the perpetrators.”23

39. In a written response to the Committee, the Crown Office and Procurator Fiscal Service responded that this was not the case—

“Clear guidance has been issued to Procurators Fiscal that where a decision has been taken to raise criminal proceedings in a case involving a charge under the Emergency Workers Act 2005 (“the 2005 Act”) or in a case involving an assault on a public service worker, proceedings in the Sheriff Court will usually be appropriate.”24

40. The Committee nonetheless notes the wide concern about how seriously the prosecution services treats assaults on workers who provide a service to the public, especially when it is not a physical assault. The Committee feels that both the Crown Office and employers need to address this perception and encourage the reporting of incidents.

Existing provisions

41. The Committee examined both statutory and common law offences to assess what added-value the offences proposed within the Bill would bring, given that it did not propose greater penalties than those already available under summary procedure for relevant existing offences.

Common law assault and breach of the peace

42. In written evidence, the Criminal Law Committee of the Law Society of Scotland expressed the view that existing common law provided sufficient protection to workers providing a service to the public as it took account of aggravating circumstances—

“The Committee maintains the view that the position with regard to common law at present providing protection from assault for everyone and allowing aggravating circumstances such as whether or not it was an assault of a worker in the course of that worker’s employment can be taken into account, both in determining the forum for prosecution and the level of sentence upon conviction.”25

43. Robert Milligan of the Scottish Police Federation, however, disagreed—

“The courts do not place sufficient emphasis on what is reported to them. If they did, the full and proper application of the common law would negate the need for any other aggravator or any other act.”26

44. In evidence to the Committee, the Cabinet Secretary for Justice indicated that any assaults which were not physical were covered by breach of the peace. He stated—

“I would have thought that the common law of breach of the peace would cover non-physical abuse.”27

45. However, Dave Watson of Unison Scotland thought that this was not the case in practice—

“….there are areas in the bill and the EWA that are not well covered by the common law, particularly in relation to lower-level offences.”28

Emergency Workers (Scotland) Act 2005

46. Emergency workers have additional protection under the EWA. The Act makes it an offence to assault, hinder or obstruct persons who provide emergency services. The EWA Act was modified in 2008 to extend protection for registered medical practitioners, registered nurses and registered midwives at all times and not just when responding to emergency circumstances.29

47. The Committee heard from various witnesses that the EWA was not being used to its full effect and that there was a preference for prosecuting using other legislation. David Dalziel of the Chief Fire Officers Association Scotland, told the Committee in oral evidence that—

“The vast majority of cases that are reported to the police are proceeded with under other legislation, such as that on common assault, reckless endangerment or breach of the peace. The 2005 act is not widely used.”30

48. The Scottish Government provided the Committee with data on the number of prosecutions under the EWA from 2005-2009, which is detailed in the table below.31

Persons with a charge proved in Scottish courts under the Emergency Workers (Scotland)
Act 2005(1), by category of offence, 2005-06 - 2008-09
Charge 2005-06 2006-07 2007-08 2008-09
Emergency workers (Scotland) Act 2005 Section 1(1) 11 44 40 74
Emergency workers (Scotland) Act 2005 Section 2(1) 14 74 90 76
Emergency workers (Scotland) Act 2005 Section 3(1) 0 3 2 4
Emergency workers (Scotland) Act 2005 Section 5(1) 29 79 143 147
Total 54 200 275 301

Notes: 1. Where main offence.

Source: The Scottish Government

49. The Royal College of Nursing (RCN) Scotland in its written submission stated that employers could also be more supportive. It said that—

“.…there is some concern that health boards are not giving staff appropriate levels of support to report assaults to the police and are not necessarily pushing for prosecutions under the Act”.32

50. The Crown Office and Procurator Fiscal Service (COPFS) responded to these views in written evidence—

“In terms of sentences for EWA offences, the courts have imposed prison sentences in a third of cases and direct alternatives to imprisonment particularly probation and community service in over a quarter of cases.”33

51. The Cabinet Secretary for Justice concurred with the COPFS view in written evidence to the Committee—

“The COPFS have confirmed that they take a robust approach in these types of cases and that the Lord Advocate has issued guidance to her staff to the effect that where a decision has been taken to raise criminal proceedings in a case involving a charge under the EWA or in a case involving an assault on a public service worker, proceedings in the Sheriff Court will usually be appropriate. The effect of this is that such cases are dealt with by courts with higher sentencing limits than would be case if they were dealt with in a justice of the peace court.”34

Analysis of the effectiveness of the EWA

52. The Committee wanted to find out if the EWA has led to an increase in the number of people prosecuted for attacking emergency workers or whether, prior to the EWA, similar numbers of people were prosecuted for such attacks using other offences (e.g. common law assault). The Committee heard that such analysis was not possible as the COPFS did not keep statistical data on the aggravating circumstances for common law assault and breach of the peace prosecutions. The Committee wrote to COPFS to ask if statistics could be made available and received a written response that this was not possible. The response stated that—

“I understand that frustration was expressed about the lack of information publicly available in relation to the incidence of common law offences, such as assaults or breaches of the peace, involving public service workers. COPFS cannot provide this information as the COPFS database is designed to meet the needs of COPFS, as the prosecution authority. The database can provide information according to particular offences. Offences are not categorised by whether the offence occurred at a place of work nor are Victims categorised according to their occupation.”35

53. In its written evidence to the Committee, the Scottish Government stated that it was difficult to draw meaningful conclusions on the effectiveness of the EWA with the available data both before and after its introduction. The Scottish Government’s submissions states that—

“…the data held in respect of common law assault and breach of the peace does not include information relating to the occupation of the victims and so pre 2005 Act data cannot show the incidences of assaults and breaches of the peace against emergency workers … However, it is probably easiest if no final conclusions are drawn at all given the difficulties in analysing what the 2005 Act data shows.”36

54. The Committee notes that in the policy memorandum it states that the Unison survey on assaults in 2007/08 found that “assaults on health workers fell by more than 1,000 from the previous year” whilst attacks on shop workers and local government workers increased and that this could be attributed in part to the EWA acting as a deterrent. However, a Unison Violent Assaults on Public Service Staff in Scotland Follow up Survey 201037 found that “During the year, the figures in health have increased by 1,510 to 15,212.” The Committee is therefore not convinced that the previously recorded reduced number of assaults on health workers can be attributed to the introduction of the EWA.

Is the EWA now necessary?

55. A central theme that emerged from evidence centred on whether the introduction of primary legislation, which does not extend the scope of the criminal law or increase the level of penalties available to the courts, is necessary. Bill McVicar told the Committee that it was the Law Society of Scotland’s view that as the introduction of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 had equalised maximum sentences for common law offences prosecuted in the sheriff summary courts and offences under the EWA, the EWA was no longer necessary—

“It is not necessary now because of the change in the sentencing regime that I mentioned earlier, as a result of which you can receive a longer sentence under common law than you can under the provisions of the 2005 act.”38

56. In its written evidence, the Scottish Government stated that it did not see the Protection of Workers (Scotland) Bill as necessary—

“The current common law of assault provides legal protections to public facing workers (and everyone else) as they go about their daily lives. The specific statutory offence provided for in Hugh Henry’s Bill would not therefore extend the scope of the criminal law in any way and would rather replicate part of existing common law within a separate specific statutory offence.”39

57. The Committee has been unable to undertake any meaningful analysis of the impact and effectiveness of the EWA due to a lack of publicly available data and recommends that the Scottish Government ensures that the COPFS collects information on the aggravating circumstances in relation to criminal offences and makes this information publicly available.

ALTERNATIVE APPROACHES

Preventative measures

58. There was broad agreement amongst those who were in favour of the Bill that it should not be a stand-alone measure, but part of a wider package of suggested measures aimed at addressing the problem of attacks on workers providing a service to the public. Measures included a high-profile publicity campaign to increase awareness of the introduction and purpose of the legislation, employers taking relevant workplace measures such as the introduction of CCTV and schemes to target unacceptable behaviour. Dave Watson of Unison Scotland told the Committee that—

“We see legislation not as the only solution but as part of a three-pronged solution. First, we need campaigns to raise public awareness, to try to make abusing people who serve the public unacceptable in the same way as drink driving is no longer acceptable … Secondly, workplace measures are important … Legislation is the third prong. It is important not just because of the deterrent and punishment elements, but because of the public policy message that it sends.”40

59. David Dalziel of the Chief Fire Officers Association Scotland outlined a community scheme which had been successfully introduced—

“There are some schemes that we, in the fire service, have found very beneficial, such as intelligence-led projects that aim to reduce the level of risk ... We have seen some benefit in using diversionary schemes such as street football schemes, which I know our police colleagues also use, and engaging with communities to target antisocial behaviour.”41

60. There was an acknowledgement that although the effectiveness of preventative measures was difficult to analyse, it was nonetheless an essential part of tackling the problem.

61. The Scottish Government reiterated its view in written evidence that the abuse of alcohol and drugs was a contributing factor and should be tackled initially. Its submission states that—

“.…we should be treating the underlying causes of many of the attacks on public workers which includes Scotland’s unhealthy relationship with alcohol and drugs which is why we have included measures in the Alcohol etc (Scotland) Bill designed to reduce consumption and harm, and why our drugs strategy should be supported.”42

Sentencing and prosecution guidelines

62. An option proposed by some to help achieve the necessary culture change was the introduction of sentencing and prosecution guidelines. In evidence both the Scottish Police Federation and the Chief Fire Officers Association Scotland favoured this approach. Bill McVicar of the Law Society of Scotland outlined how guidelines had been successfully introduced in relation to knife crime—

“I understand that the Lord Advocate has set out guidelines that require cases that involve someone with a previous conviction for carrying a knife to be prosecuted on indictment, which gives the court that deals with the matter a much stronger sentencing possibility. It seems to me that those would be more effective means of dealing with problems relating to the harassment or abuse of workers.”43

63. Dave Watson of Unison Scotland agreed that prosecution guidelines would assist in helping to tackle the perception that assaults were not taken seriously by the Crown Office—

“I would like there to be stronger prosecution guidelines, better collection of data and better training for fiscals.”44

64. The Committee is of the view that the introduction and application of both sentencing and prosecution guidelines in relation to assaults on workers providing a public service would be beneficial in tackling the perception that aggravating circumstances are not taken seriously. Any such introduction should be linked to a high-profile publicity campaign.

Definition of worker

65. The question of which workers would be covered by the Bill was raised in written evidence and during evidence to the Committee. Section 1(3) of the Bill defines a worker as “a person whose employment involves dealing with members of the public, to any extent, but only if that employment involves (a) being physically present in the same place and at the same time as one or more members of the public”.

66. The Committee heard evidence from the Federation of Small Businesses that self-employed workers should be included in the Bill, whereas the view of the STUC was that self-employed workers were already covered by the current definition.

67. The Cabinet Secretary for Justice told the Committee that the inclusion of self-employed workers would make the scope of the Bill too large and it would lack focus45. The Committee asked the Cabinet Secretary to provide an estimate of the number of Scotland’s workforce who would be covered by the Bill as introduced, including self-employed workers, and received an estimate that this would be 1,052,800 or 43% of Scotland’s workforce. However, this figure came with the caveat that “…the figures given above carry a significant health warning as it is very difficult to map across the provisions in the Bill to occupational groups with exact precision.”

68. In evidence to the Committee Hugh Henry MSP agreed that further clarification on whether or not the self-employed who did not “take a wage” were covered was required. He said—

“Some people structure their businesses so that they exist on dividends. That may be an issue that we need to consider further, but those who draw a wage are in paid work.”46

69. ACPOS raised a concern with regards to the definition of a worker in their written evidence—

“The interpretation of which workers are, or are not, protected by the Bill could be extremely problematic with the phrase, ‘providing a service face to face with the public’, being wide ranging.”47

70. The Committee questioned whether or not call centre workers would be covered by the Bill. Mike Dailly of Govan Law Centre subsequently wrote to the Committee and stated that abusive telephone calls are prosecuted in Scotland under section 127 of the Communications Act 2003. The member in charge of the Bill, Hugh Henry MSP, confirmed in evidence to the Committee that call centre workers were not covered by his Bill. However, his view was that this was an issue that could be looked at during stage 2 consideration—

“If the Bill got to stage 2 and members such as you who are listening to the arguments of those who support call centre workers felt that a workable amendment could be made, that would be for others to determine.”48

71. The Committee is concerned about the lack of clearer definition on the face of the Bill in relation to which workers are covered and would like clarification should the Bill proceed to stage 2.

Definition of assault

72. The Committee heard conflicting oral evidence on whether or not verbal abuse and/or threatening behaviour should be included in the Bill. The Committee heard that the type of verbal abuse and the “day-in day-out” nature of it can, and does, have an adverse effect on the health of workers. Julie McComasky, of First ScotRail told the Committee—

“A piece of legislation that recognised verbal assault, and the fact that it might happen not just once, would be of great benefit. Verbal assault can go on and on, and can have an adverse effect on people and their ability to do their work.”49

73. Similarly, Ian Tasker of the STUC thought that verbal abuse was classed as “low-level” and not taken seriously—

“We must consider how we can extend the legislation to cover verbal abuse, because we often hear reports of that happening. The public awareness of verbal abuse is low, but when it involves threats to individuals, it is a very serious offence … We need a serious debate on how we can extend the provisions for emergency workers to all workers who carry out public services.”50

74. In oral evidence, the Cabinet Secretary for Justice stated that tackling verbal abuse “would be about better enforcement of breach of the peace” rather than by new legislation.

75. The Committee is of the view that verbally abusing a worker providing a service to the public is unacceptable behaviour and that this needs to be taken seriously by both employers and the prosecution service.

Definition of member of the public

76. Section 1 (1) refers to “A person, being a member of the public”. The Committee heard evidence that this term could have a different meaning depending on the circumstances and therefore needed clarification.

77. Sam Jennings of Capability Scotland told the Committee that she was concerned about who would be covered by that definition—

“We wanted to be clear that the definition would extend to the clients who use our services—our service users—and to their parents and carers. Our staff might be providing a service to the individual, but the risk of violence or aggressive behaviour can also come from a service user's parents, family, or other carers. I wanted to clarify whether that would be an offence under the bill.”51

78. The Committee is aware of concern about the lack of definition on the face of the Bill in relation to who would be classed as a member of the public and the difficulties this would pose for the police and prosecution service. The Committee would like to see clarification of this issue should the Bill proceed to stage 2.

Subordinate Legislation Committee Report

79. There are no provisions of the Bill that confer powers to make subordinate legislation and therefore the Subordinate Legislation Committee did not consider the Bill.

Financial Memorandum

80. The Finance Committee adopted a ‘level 1’ approach to scrutiny of the Financial Memorandum for the Bill and did not, therefore, take oral evidence on the Bill or produce a report. A letter from the Convener of the Finance Committee with a copy of the evidence received is attached at Annexe A.

Policy Memorandum

81. The member in charge of the Bill prepared a Policy Memorandum, which accompanied the Bill when introduced. The Committee agrees that the Policy Memorandum provided a comprehensive explanation of the policy objectives of the Bill. The Committee is content that an inclusive and in-depth consultation process took place and that there was an adequate consideration of the impact of the Bill on equal opportunities. The respondents indicated that the Bill would have a positive effect on equality by increasing the safety of workers and the safety of the public.

CONCLUSION on the general principles of the bill

82. From the written and oral evidence received by the Committee, it is clear that there is strong support for the basic principle that the rights of those who provide a service to the public should be respected. However, the Committee considers that the principal debate arising from scrutiny of the Bill centres on whether primary legislation is the most appropriate method of seeking to ensure the protection of public facing workers.

83. The Committee believes that the issues raised are significant and that if they are not dealt with by this Bill then Parliament should look at other ways of addressing them, such as those outlined in paragraph 64 of this report.

84. The Committee is of the view that the Scottish Parliament and the Scottish Government should address the issues now, particularly with regards to the introduction of sentencing and prosecution guidelines and the collection of relevant and transparent data.

85. The Committee welcomes, and shares, the commitment of the member in charge of the Bill to promote the protection of, and respect for, public facing workers and recognises that there is a need for a culture change to tackle unacceptable behaviour towards those workers.

86. The Committee is of the view that the proposals in the Bill will not extend the protection currently available under the common law offence of assault and therefore recommends that the general principles of the Bill are not agreed to.52

Annexe A: LETTER FROM THE FINANCE COMMITTEE

Dear Iain

Finance Committee – consideration of the Financial Memorandum of the Protection of Workers (Scotland) Bill

As you are aware, the Finance Committee examines the financial implications of all legislation, through the scrutiny of Financial Memoranda. The Committee agreed to adopt level one scrutiny in relation to the Protection of Workers (Scotland) Bill. Applying this level of scrutiny means that the Committee does not take oral evidence or produce a report, but it does seek written evidence from affected organisations.

The Committee received one submission, from the Scottish Court Service, which is attached to this letter. If you have any questions about the Committee’s scrutiny of the FM, please contact the clerks to the Committee via the contact details above.

Yours sincerely

Andrew Welsh MSP,
Convener

Submission from the Scottish Court Service

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

The Scottish Court Service did not participate in the consultation exercise, and made no comment on the financial assumptions made.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

As at 1. above.

3. Did you have sufficient time to contribute to the consultation exercise?

The Scottish Court Service did have sufficient time to contribute to the consultation exercise. We did not respond to the consultation as we did not anticipate that the proposals would create any difficulties for us.

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

We do not anticipate that the Bill would have any financial implications for the Scottish Court Service.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

As at 4. above.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

As at 4. above.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

We are unaware of any related wider policy initiative.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

We are unaware of any related future costs.

Annexe B: EXTRACTS FROM THE MINUTES

24th Meeting, 2010 (Session 3), Wednesday 15 September 2010

Protection of Workers (Scotland) Bill: The Committee considered its approach to the scrutiny of the Bill at Stage 1.

25th Meeting, 2010 (Session 3), Wednesday 22 September 2010

Protection of Workers (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Jackson Cullinane, Unite
David Dalziel, Chief Fire Officers Association Scotland
Robert Milligan, Scottish Police Federation
Ian Tasker, STUC
Dave Watson, UNISON Scotland
David Dickson, William Morrisons Supermarket
Stuart Forrest, USDAW

26th Meeting, 2010 (Session 3), Wednesday 29 September 2010

Protection of Workers (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Colin Borland, Federation of Small Businesses
Sam Jennings, Capability Scotland
Julie McComasky, First ScotRail Limited
Alan McCreadie, The Law Society of Scotland
Bill McVicar, The Law Society of Scotland

27th Meeting, 2010 (Session 3), Wednesday 6 October 2010

Protection of Workers (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Kenny MacAskill, Cabinet Secretary for Justice
Philip Lamont, Head of Branch, Criminal Justice and Sentencing, Scottish Government

30th Meeting, 2010 (Session 3), Wednesday 10 November 2010

Protection of Workers (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Hugh Henry MSP
Mike Dailly, Principal Solicitor, Govan Law Centre

31st Meeting, 2010 (Session 3), Wednesday 17 November 2010

Protection of Workers (Scotland) Bill: The Committee considered a revised draft Stage 1 report. The Committee voted on the following proposed amendment to the recommendation to Parliament on the general principles of the Bill—

“The Committee believes that the Bill requires some strengthening and clarification in a number of areas, for example in relation to hindrance and obstruction, the definition of a worker and the definition of a member of the public. The Committee supports the general principles of the Bill in expectation of these issues being addressed at stage 2.”

This amendment was disagreed by division: For: 3 (Lewis Macdonald, Wendy Alexander and Marilyn Livingstone), Against: 5 (Iain Smith, Gavin Brown, Christopher Harvie, Stuart Macmillan and Rob Gibson), Abstentions: 0.

Annexe C: Oral EVIDENCE

Wednesday 22 September 2010

Wednesday 29 September 2010

Wednesday 6 October 2010

Wednesday 10 November 2010

Annexe D: list of written evidence

Copies of all other written and supplementary evidence received by the Committee can be found on the Scottish Parliament website (www.scottish.parliament.uk)

SUBMISSION FROM ASLEF (Associated Society of Locomotive Engineers and Firemen)

1. The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train driver’s union representing approximately 18,000 members in train operating companies and freight companies as well as London Underground and Overground.

2. ASLEF welcomes the fact that Hugh Henry MSP has raised the issue of worker protection and hope this will lead to a proper debate on the issue of assault on transport workers. We also support the proposal that will lead to stricter sentences for those who attack staff providing a service to the public.

3. The primary role of a trade union is to protect its members. This takes many forms the most important of which are the welfare and physical health of members. ASLEF has continuously campaigned to improve the health and safety within the rail industry. The railways have the potential to be extremely dangerous working environments. Through joint working with employers and various agencies, the union has significantly improved the health and safety environment of many of our members. As a result of this one of the biggest threats to our members safety is, in fact, the travelling public whom they serve.

4. ASLEF would point out that the SRM (Safety Risk Model) estimates that 11% of all workforce risk is due to assaults. Three quarters of this risk is from physical assaults. The remainder comprises shock and trauma arising from verbal abuse and threats. In 2009/10, the British railway workforce had to endure eight major injuries, 527 minor injuries, and 727 cases of shock/trauma to the workforce, as a result of assault. ASLEF believes that one injury due to violence is one too many and this problem must be alleviated.

5. As would be expected, regarding this issue the welfare of our members is our main priority. However, there are other consequences of assaults on staff. It can also lead to major disruption to the rail network which will affect passengers and in turn revenue. It may also lead to the perception that rail travel is unsafe and prevent people using rail services in the future.

6. There are of course many measures which could be introduced to prevent such crimes and there should be a new offence created to deal with this. ASLEF strongly agrees with the proposals that tougher sentencing should be introduced as a preventative measure. The union agrees with the new offence carrying a prison sentence of up to 12 months and a fine of £5000.

7. The union does not believe that there would be a significant cost associated with this bill. In fact, as previously mentioned, crime on the rail network can lead to reduced revenue due to delays and lower passenger numbers. Therefore a reduction in staff assaults would lead to higher revenues. In addition, the union feels that there should be no cost cutting measures when it comes to the safety of train drivers who provide an essential service.

8. We would additionally point out that in 2009/2010 there were 1776 physical assaults on railway staff along with 683 threats and 2413 verbal assaults. These incidents had a significant impact both on the staff involved as well as the operation of rail services. In the average week, for instance, four to five workers will suffer injury from an assault which will lead to at least one day’s absence from work. Of those assaults resulting in absence, 26% will be over a week and 11% lead to over 5 weeks away from work. This causes a great strain on the railways which simply cannot function if understaffed.

9. ASLEF believes that it is essential that workers who deliver a public service are given the same protection as those covered by the Emergency Workers Act. An attack on either can affect public services and in turn public safety. ASLEF therefore strongly supports the bill and hopes it can make progress in ensuring that the 4872 assaults to railway staff in 2009/10 dramatically reduce over the coming years.

ASLEF
August 2010

SUBMISSION FROM ACPOS (Association of Chief Police Officers in Scotland)

Q1. Are there any other groups of workers that you think should be captured in the Bill?

The proposal to extend the Bill to all workers who provide a face to face service to the public, would in essence, represent the vast majority of those employed in the extensive public and private service sectors. There would therefore, be no recommendation for further extension.

Q2. How effective have you found the Emergency Workers Act 2005?

Application of this legislation is now well established throughout Scotland and the legislation provides a useful statutory tool to be considered when dealing with such crimes.

There is little evidence to suggest that assaults on emergency workers have increased since the Act’s inception and a dip sample of court disposals for such cases (ranging from assaulting / obstructing ambulance personnel) in one Force, showed outcomes ranging from offenders being admonished to receiving up to 4 months imprisonment.

It is worth noting that the provisions of the 2005 Act were introduced to recognise the key roles played by all emergency services. This reflects the fact that emergency workers may find themselves subjected to abuse, violence or be exposed to the risk of injury when attempting to assist individuals or save lives. The sanctions detailed within the Act recognise that this type of behaviour will not be tolerated against those individuals who seek to deliver a unique service. Additionally, it should be noted that emergency workers have no option to refuse service provision, as compared to other workers.

The definition of emergency within the legislation does not cover the day to day activities of emergency services, and the penalties imposed reflect the serious nature of such offences and the detrimental impact they have on these workers’ ability to respond to emergency situations.

The Act was modified in 2008 to include medical practitioners, midwives etc engaged in their “daily activities” in hospital premises. This exception to emergency circumstances was deemed necessary, due to the importance of these roles and the particular situations such workers may encounter.

Q3. Do you think there will be additional cost associated with this Bill?

No additional costs were anticipated in relation to the proposed Bill.

Q4. Are the penalties proposed in this document sufficient, and if not, what penalties would you propose?

&

Q5. Do you have any other comments or views on extending the tougher penalties contained in the Emergency Workers Act 2005, to workers providing a face to face services to the public?

In general terms, the principle that persons who work in public facing roles should expect adequate protection by the law should they fall victim to crime, is a sound and accepted one. At present there are provisions under common law to protect these individuals.

The current Standard Police Report (SPR2) provides the opportunity to highlight fully the circumstances of an assault, be it upon a ‘shop worker’ or whomever, and provides the Crown with sufficient evidence and information to ensure the Sheriff (etc) is sighted on the particulars of each case to pass an appropriate sentence.

Any penalties imposed by such a Bill would have to reflect the detrimental impact to the service of each individual service provider. For the reasons highlighted above in response to Q2. In relation to the unique role of emergency services, to compare or attempt to reflect the penalties imposed by the Emergency Workers (Scotland) Act 2005 would be inappropriate.

Q6. In what ways will the proposed Bill extend equal opportunity provisions and should it go further?

It would not appear to be the case that the Bill would extend equal opportunities. Any legislation to deter and punish individuals, who assault etc those who provide any public service, should be progressed on its merits, as opposed to attempting to mirror the Emergency Workers (Scotland) Act 2005.

Q7. Should hindrance and/or obstruction of the workers specified in the proposal be included in this proposed bill in the same way as is in the Emergency Workers Act?

The interpretation of which workers are, or are not, protected by the Bill could be extremely problematic with the phrase, ‘providing a service face to face with the public’, being wide ranging.

There may also be significant issues with extending the use of the offences of hindrance / obstruction when applied to general public facing employees. The interpretation of what would merit hindering or obstructing a bus driver or shop worker for example, is open to interpretation and in some cases could criminalise extremely minor acts. The work being carried out by a paramedic or fire-fighter responding to an emergency situation or assisting a critically injured person and being obstructed or hindered from doing so, is obviously far more easily defined.

There is also a danger that by encompassing such offences for all public-serving workers, this may devalue the aggravating nature of the current legislation to protect emergency service personnel.

As you will be aware, Violence is recognised as a very high priority in the Scottish Control Strategy, with crimes and offences in the category covered by the proposed legislation clearly falling within this area and receiving a considerable amount of attention and scrutiny. Additionally, forces, as active participants in the Campaign against Violence, have already put into place additional processes and initiatives to address this type of offending behaviour.

In conclusion, whilst the general principle that people working in public facing roles should expect appropriate protection under the law is agreed, ACPOS believes that current common law provisions and Forces’ priorities adequately protect such workers, without the need for further legislation.

ACPOS would therefore not support the proposed Bill.

August 2010

SUBMISSION FROM CAPABILITY SCOTLAND

1. BACKGROUND

1.1. Capability Scotland is one of Scotland’s leading providers of employment, education and support services to disabled people, their families and carers.

1.2. The organisation’s direct service provision is combined with campaigning, consultancy and advice to ensure that the organisation functions as an ally of disabled people as they strive to gain full equality, choice and control in their lives.

1.3. Capability employs approximately 1,000 staff across a broad range of occupational disciplines from social care and nursing through to shop work, marketing and campaigning.

1.4. Capability Scotland is committed to taking all reasonable precautions necessary to secure the health and safety of all employees carrying out work activities, including helping to combat violence and aggression.

1.5. Capability recognises that the likelihood of experiencing challenging behaviour, which may lead to injury and/or verbal abuse in the workplace, is a genuine concern for many of our staff.

1.6. It is also recognised that the nature of the services Capability provides may sometimes place particular groups of staff at risk.

1.7. Capability supports staff with effective use of personal planning and risk assessment to seek to remove, minimise or manage the risks and effects of challenging behaviour.

1.8. Our staff have the right to involve the police if they have been assaulted or feel that their personal safety is in jeopardy as a result of a service user’s challenging behaviour or the behaviour of a member of the public.

1.9. We are aware that the Economy, Energy and Tourism Committee are considering evidence on the general principles of the Protection of Workers (Scotland) Bill.

1.10. This Bill seeks to create a specific statutory offence dealing with assaults on people whose work brings them into contact with members of the public.

1.11. Capability Scotland is pleased to provide written evidence in relation to this draft Bill.

1.12. We are broadly supportive of the general principles of the bill and are very pleased to see unpaid workers included within the scope of the legislation.

2. SPECIFIC COMMENTS

2.1. We are aware that there has been significant debate in the Scottish Parliament around the necessity for additional legislation in this area given the protections already offered to public-facing workers under the common law of assault and the common law of breach of the peace.

2.2. As an organisation Capability Scotland is pleased that successive Scottish Governments have recognised the nature and the scale of the problem in relation to violence against workers in the public services.

2.3. We believe extending protections provided by the EWA to all public-facing workers will send a clear public policy message that violence against workers who are serving the public should not be tolerated.

2.4. Our specific comments relate however to the need for the following in any extension of EWA protections to public-facing workers:

  • clarification as to who would constitute a member of the public
  • assurances that provisions within the draft Bill would apply suitably to the care settings that many of our workers operate in
  • clarification as to whether non-physical assault would be covered by this legislation if it led to obstruction of a service (verbal assaults/threatening behaviour that can be physically damaging to a worker for example)
  • clarification as to whether hindrance and/or obstruction of workers will be proposed in the same way in this Bill as it is in the EWA.

BILL SECTIONS

1.1. Section 1(1) of the draft Bill makes it an offence for a person, defined as a member of the public, to assault a worker during (a) the course of that workers employment or (b) by reason of that worker’s employment. At present the Bill does not elaborate on who this might exclude from the scope of the offence. We would welcome clarification about who would be covered by the definition of member of the public – would this new offence cover disabled people who use our services and their families and supporters if they assaulted a member of our staff?

1.2. Section 1(2) of the draft Bill states that no offence is committed unless the person who assaults knows or ought to know that the worker is acting in the course of the workers employment. If our service users are covered in the definition of member of the public, it may be difficult to establish prior knowledge or malice towards a worker’s employment in this context particularly when there are doubts over a person’s capacity.

1.3. Non-physical assault, principally threatening or violent verbal abuse towards staff that leads to staff absence and sick leave can be as obstructive to service delivery as a physical assault in some cases. Are there any plans to apply tougher penalties to breaches of the peace directed at public facing workers?

1.4. In relation to hindrance and/or obstruction of workers, will this be proposed in the same way in this Bill as it is in the EWA? We are unclear that hindrance and obstruction would apply as readily to the delivery of services that we provide as to the provision of an emergency service.

Capability Scotland,
September 2010

SUBMISSION FROM THE CROWN OFFICE AND PROCURATOR FISCAL SERVICE (COPFS)

I understand that at the evidence session on 22 September 2010, in relation to Stage 1 of the Protection of Workers (Scotland) Bill, a number of issues were raised which relate to the work of Crown Office and Procurator Fiscal Service (COPFS). The Committee has sought a response from COPFS and I am grateful for the opportunity to submit evidence to the Economy, Energy and Tourism Committee.

I understand that concerns were raised in the evidence given to the Committee that criminal proceedings are not being taken in cases involving public service workers and indeed in cases involving offences under the Emergency Workers Act 2005.

I am obviously concerned to learn of this perception among those who represent workers. I would like to take this opportunity to reassure the Committee and all interested parties that COPFS takes a robust approach in relation to crimes against both emergency and public service workers. Clear guidance has been issued to Procurators Fiscal that where a decision has been taken to raise criminal proceedings in a case involving a charge under the Emergency Workers Act 2005 (“the 2005 Act”) or in a case involving an assault on a public service worker, proceedings in the Sheriff Court will usually be appropriate.

This has been our prosecution policy as far back as 2004, when my predecessor, Mr. Colin Boyd QC took part in Parliamentary debates in relation to the Emergency Workers (Scotland) Bill. He stated inter alia the following:-

“It is completely unacceptable that anyone should be the subject of assault or abuse at work. We want to make sure that the law is an effective tool in ensuring the safety and welfare of emergency workers and all public service workers. We are prudent to recognise that legislation is not the answer in every case. In some situations the best possible solutions lie within existing law. I am firmly of the view that this is true for the protection of public service workers. However, the situation is different for emergency personnel. These workers perform a unique and vital role in our society. The nature of their work renders them, and those who assist them, particularly vulnerable to attack. When emergency workers are assaulted, obstructed, or hindered, in the course of dealing with an emergency, it is not only their lives which are put at risk, but the lives of those they are working to protect.”

I wholeheartedly endorse these comments. The prosecution of assaults committed against workers who have face to face contact with the public can be appropriately dealt with under the existing common law, which also allows for offences of particular gravity to be prosecuted on indictment. The common law allows for greater flexibility and penalties than the statutory provisions. I can give two recent examples of this in practice.

In the case of PF Dundee v Simpson, the accused assaulted two paramedics who came to his assistance when he was reported as being unconscious in the street. He was only 16 years of age and extremely drunk. One of the complainers sustained a fractured rib.

The Crown proceeded on a charge under the 2005 Act and a common law assault to injury. The accused was sentenced to 8 months detention. In HMA v Lamont, the accused was prosecuted on indictment for offences under the 2005 Act, breaches of the peace, possession of offensive weapons and police assaults. He was sentenced in total to 21 months imprisonment.

These cases highlight occasions where the Crown has libelled a mixture of common law and statutory offences involving emergency workers, with a positive outcome. Data about cases prosecuted under the 2005 Act between 2006 and 2010 is also enclosed with this letter to provide information about the approach by procurators fiscal and subsequent sentencing by the courts.

The normal rules of evidence apply and if there is insufficient evidence providing the necessary corroboration to prove the charge then criminal proceedings cannot be raised.

The data indicates that of the 2,313 cases reported to COPFS under the 2005 Act between 2006 and 2010, procurators fiscal took action in 90% of cases and 85% of cases proceeded in the Sheriff Court. In 5% of cases Direct Measures were deemed to be appropriate. The majority of these were issued prior to the changes made by Summary Justice Reform.

Of the cases prosecuted, procurators fiscal subsequently discontinued proceedings in only a tenth of these cases with the most common reasons being the incapacity or death of the accused or a change in the evidence available leading to insufficient to continue proceedings.

In terms of sentences for EWA offences, the courts have imposed prison sentences in a third of cases and direct alternatives to imprisonment particularly probation and community service in over a quarter of cases. There is a small percentage (around 12%) where absolute discharges were granted. Whilst the matter of sentencing is not for COPFS, it does appear that the courts regard these offences seriously and sentence accordingly.

I understand that frustration was expressed about the lack of information publicly available in relation to the incidence of common law offences, such as assaults or breaches of the peace, involving public service workers. COPFS cannot provide this information as the COPFS database is designed to meet the needs of COPFS, as the prosecution authority. The database can provide information according to particular offences. Offences are not categorised by whether the offence occurred at a place of work nor are Victims categorised according to their occupation.

The COPFS database was never intended to be a statistical database and, although we have made many improvements in order to assist criminal justice colleagues, providing the type of information sought would be highly resource intensive, involving an individual examination of every case submitted to COPFS by the police where a particular charge is involved. In addition, given the integrated criminal justice system, many of the statistics we provide rely on other criminal justice agencies such as Scottish Courts Service which records all disposals in court.

I note from the comments made at Committee on 22 September 2010, that there appears to be some confusion in relation to the meaning around the terminologies of ‘aggravations’, ‘statutory aggravations’ and ‘aggravating factors’. It might assist if I were to provide some further explanation.

Offences under the 2005 Act are specific offences and are not aggravations to the common law offences of assault or breach of the peace. Matters which are not part of the crime itself may nevertheless assume importance as aggravations, that is, circumstances which are included on indictments or complaints in order to add further gravity to the charge and, possibly, to any sentence. There are a number of statutory aggravations which, if established, the court is obliged to take into consideration when sentencing. Examples of such aggravations are that the offence was motivated by racial or religious prejudice or a prejudice based on someone’s perceived disability, sexual orientation or transgender status.

However, if an assault was committed against a victim who was in the course of their employment, that fact would be considered to be an aggravating factor, in terms of aggravating the seriousness of the offence, and is a fact that the Crown would narrate to the court in the event that the accused plead guilty or which would be led in evidence at trial to enable the court to consider the full circumstances of the offence.

It is suggested in the evidence given on 22 September that there is anecdotal evidence that Procurators Fiscal remove aggravations as part of plea negotiations. The statutory aggravations are not removed as part of plea negotiation where there is sufficient evidence to support the aggravation and, equally, the fact that an offence occurred during the course of a victim’s employment forms part of the facts of the case and is not a matter which would be withheld from the court in the event of a plea of guilty.

I hope that the Committee finds this evidence useful. I would be happy to answer any additional questions as the Bill progresses.

SUBMISSION FROM THE FEDERATION OF SMALL BUSINESSES

Introduction

1. The Federation of Small Businesses is Scotland’s largest direct-member business organisation, representing around 20,000 members in every sector of the economy and every area of the country. The FSB campaigns for an economic and social environment which allows small businesses to grow and prosper.

2. Given that our members play an integral role in their communities by delivering important services, we welcome the opportunity to submit our comments to the consultation on the Protection of Workers (Scotland) Bill.

Background

3. The Emergency Workers (Scotland) Act 2005 introduced tougher criminal penalties for those who assault, hinder or obstruct specified emergency service workers in the course of their work. Others who also provide a service to the public, such as shop workers and bus and taxi drivers, were not covered and so this Bill aims to extend a similar protection to them.

4. This, we believe, is a most laudable objective. A range of workers provide essential services – from transport to retail – without which communities would not remain viable. Thus, we welcome moves to send a strong message that violence against people delivering those services is completely unacceptable and to extend to them the same protection enjoyed by emergency workers.

5. The FSB responded to the consultation on the Workers (Aggravated Offences) (Scotland) Bill in September 2009. In that response, we raised a question about whether the self-employed / owner-managers would be covered by the legislation. It is on this issue that we would again seek clarification.

FSB Research

6. A recent FSB/ICM survey of FSB members found that 28 per cent of respondents in Scotland had experienced threatening behaviour, intimidation or aggression in the course of the last year. We feel that these findings are relevant to this response. (Details of full survey results are available on request.)

FSB-ICM ‘Voice of Small Business’ Panel Survey (June 2010)
Online Fieldwork: 18th June - 4th July 2010

Q4 In the course of your business activities have you suffered from any of the following crimes in the past year?

Base: All respondents

 

Total England (j) Scotland (k) Northern Ireland (l) Wales (m)
Unweighted base 1216 1006 122 28 60
Weighted base 1216 984 123 49** 61*
NET: Any mention/ crime 772 617 79 30 47
  64% 63% 65% 61% 77%fij
Criminal damage / 312 245 32 9 25
Vandalism 26% 25% 26% 18% 42%bef
          gikj
Graffiti 152 117 18 5 12
  13% 12% 15% 11% 20%gi
Vehicle theft / damage 281 227 27 10 17
  23% 23% 22% 21% 28%
Threatening behaviour / 325 260 34 10 20
intimidation / 27% 26% 28% 21% 33%
aggression          
Shoplifting 148 105 24 12 7
  12% 11% 20%abcf 25% 12%
      ij    
Fly-tipping 202 162 21 9 10
  17% 16% 17% 18% 17%
Arson 16 13 2 - 1
  1% 1% 2% - 2%
Burglary 160 133 10 7 10
  13% 14% 8% 14% 17%
Robbery 93 72 7 7 7
  8% 7% 6% 14% 12%b
Assault on owners / 51 44 5 2 1
staff 4% 4% 4% 4% 2%
Gun or knife related 4 3 1 - -
crime * * 1% - -
Proportions/Means: Columns Tested (5% risk level) - a/b/c/d/e/f/g/h/i/k/l/m - j/k - j/l - j/m - o/p
* small base; ** very small base (under 30) ineligible for sig testing
Prepared for The Federation of Small Businesses by Guided Insight & ICM Research

Definition of ‘worker’ and ‘employment’

7. Section 1(3) defines the individuals to whom the provisions of the Bill will apply. Essentially, “worker” is defined as a, “person whose employment involves dealing with members of the public”. “Employment” is then defined as, “any paid or unpaid work whether under a contract, apprenticeship, or otherwise.”

8. Thus, the section will cover employees, contractors, agency workers, volunteers and apprentices. However, we are unclear whether the term “or otherwise” will include the self-employed or business owners.

9. Looking to the policy memorandum for evidence of intention, examples of the sort of occupations which are key to communities include taxi drivers, who in many cases will be self-employed.

10. The FSB, therefore, would like to see the self-employed and business owners explicitly included on the face of the Bill. This would give our members, such as shop owner/managers, an assurance that they enjoyed the same protection as other individuals within the business who happen to be employees.

Conclusion

11. Small businesses provide vital services (and, of course, the consequent jobs) in communities across Scotland. Indeed, the local pub, shop or Post Office can often be the glue which binds vulnerable rural and urban communities together. The FSB therefore backs any move to recognise the importance of these businesses and their staff and to protect them from violence and intimidation at work.

12. To be equitable and truly effective, however, this Bill must apply to those who are delivering services while self-employed. The FSB therefore calls for the inclusion, on the face of the bill, of confirmation that the protection will extend to the self-employed and other business owners.

Federation of Small Businesses
September 2010

SUBMISSION FROM RCN SCOTLAND

Protection of Workers (Scotland) Bill

1. As the largest trade union for nurses, nursing assistants and nursing students, the Royal College of Nursing (RCN) Scotland welcomes the opportunity to comment on the Protection of Workers (Scotland) Bill at Stage 1.

2. RCN Scotland supports the principle of all workers serving the public being offered extra legislative protection from assaults and abuse. RCN Scotland fought long and hard for the introduction of the Emergency Workers (Scotland) Act and the extension that was made in 2008 to cover healthcare workers based in our communities. This was because assaults against healthcare staff – and a lack of subsequent prosecutions – had almost come to be seen as part of the job, particularly for staff working in accident and emergency departments.

3. However, while our members feel that the Act affords them some protection and serves as a deterrent to some would-be offenders, there is some concern that health boards are not giving staff appropriate levels of support to report assaults to the police and are not necessarily pushing for prosecutions under the Act. Given this concern, RCN Scotland is pleased that the approach taken by Hugh Henry MSP will result in separate legislation to protect other workers serving the public, rather than extending the Emergency Workers Act to cover all types of worker serving the public. This will mean that the existing legislation will not be diluted and there will still be an impetus for health boards to improve the level of support they give to staff who would like to see perpetrators of violence prosecuted under the Emergency Workers Act.

4. RCN Scotland believes that the principle of everyone serving the public being afforded additional legislative protection from assaults is robust and as such we support the principles behind the Protection of Workers (Scotland) Bill.

RCN Scotland
August 2010

SUBMISSION FROM SCOTTISH CHILDREN’S REPORTER ADMINISTRATION (SCRA)

1. Introduction

1.1 SCRA welcomes the opportunity to provide written evidence to the Economy, Energy and Tourism Committee on the Protection of Workers (Scotland) Bill.

1.2 We are pleased to note that assaults on SCRA staff by members of the public are extremely rare but nonetheless we welcome the Bill’s extension of the protections granted by the Emergency Workers (Scotland) Act to other workers providing public services, whether on a paid or voluntary basis.

2. Detailed response

2.1 We understand that the Bill would cover SCRA staff members including Reporters, reception staff and support staff whose role involves face to face contact with members of the public.

2.2 However, SCRA has a question about the definition of “in the same place, at the same time” contained in s.3(a) of the Bill and whether a narrow interpretation of this part of the Bill might unreasonably withhold protection from a cohort of staff who provide a valuable public service. As an example, our Glasgow office includes a number of Hearings suites on the lower floors where children and families come to attend Children’s Hearings. The upper floors accommodate our staff who enter the building by a separate entrance. There are a number of staff members who do not have direct face to face contact with members of the public in the course of their work, but do deal on a regular basis with families over the phone in situations that can often be emotionally highly charged. Should one of them be assaulted leaving the office due to having been identified as an SCRA staff member, it is difficult to see how the provisions of the Bill would apply unless the definition of “in the same place at the same time” was fairly broad. We would not wish to see a lesser degree of protection applied to such staff members and hope that the Committee will consider how this situation might be remedied.

3. Conclusion

3.1 SCRA welcomes the provisions of the Protection of Workers (Scotland) Bill, subject to the comments made above in relation to s.3(a).

SCRA
September 2010

SUBMISSION FROM THE SCOTTISH GOVERNMENT

Introduction

This memorandum has been prepared by the Scottish Government to assist consideration by the Economy, Energy and Tourism Committee of the Protection of Workers (Scotland) Bill (“the Bill), which was introduced by Hugh Henry MSP on 1 June 2010.

Background

The Bill provides for a specific statutory offence of assault on a public facing worker. A relevant worker is defined under the Bill as a person whose employment involves dealing with members of the public, to any extent; but only if that employment involves:

  • being physically present in the same place and at the same time as one or more members of the public; and (either or both)
  • interacting with those members of the public for the purposes of the employment, or providing a service to either particular members of the public or the public generally.

The statutory offence would be triable at summary level only and would carry a maximum penalty of 12 months imprisonment and/or a fine up to the prescribed sum (currently £10,000).

The current common law of assault provides legal protections to public facing workers (and everyone else) as they go about their daily lives. The specific statutory offence provided for in Hugh Henry’s Bill would not therefore extend the scope of the criminal law in any way and would rather replicate part of existing common law within a separate specific statutory offence.

Consultation

Mr Henry ran a consultation between June and September 2009. 192 responses were received with significant support offered for the proposals. One third of respondents (64) were from either trade unions themselves or individual members of trade unions. There were 92 individual respondents who did not specify whether they were members of trade unions.

Financial Impact

The Financial Memorandum to the Bill indicates the financial implications of the provisions are relatively limited with no significant on-going costs. We agree with this assessment as the Bill would place on statute conduct that is already against the common law of assault. As such, it is unlikely any significant costs would arise as no new prosecutions would likely emerge. There would be normal minor transitional costs for justice system partners (the Crown Office and Procurator Fiscal Service, the police, the Scottish Court Service) associated with the creation of statutory criminal offences eg. updating IT systems.

Scottish Government’s Position

In many respects, the approach taken with the Bill seeks to develop the content of the Emergency Workers (Scotland) Act 2005 (“the 2005 Act”). Much of the debate during the progress through Parliament of the 2005 Act centred on whether it was necessary to take conduct that was already against the common law of assault and breach of the peace and provide for specific statutory offences relating to assaulting, obstructing or hindering workers who provide emergency services.

The 2005 Act has been in force for some years with the following data collected in relation to its use:

Persons with a charge proved in Scottish courts under the Emergency Workers (Scotland) Act 2005(1),
by category of offence, 2005-06 - 2008-09
Charge 2005-06 2006-07 2007-08 2008-09
Emergency workers (Scotland) Act 2005 Section 1(1) 11 44 40 74
Emergency workers (Scotland) Act 2005 Section 2(1) 14 74 90 76
Emergency workers (Scotland) Act 2005 Section 3(1) 0 3 2 4
Emergency workers (Scotland) Act 2005 Section 5(1) 29 79 143 147
Total 54 200 275 301

1. Where main offence.

As noted above, the 2005 Act provided for specific statutory offences relating to conduct that was already covered by the common law of assault and breach of peace. The way data is collected in relation to common law charges of assault and breach of the peace mean it is difficult to reach any conclusions in respect of what the 2005 Act data shows as no meaningful comparison can be made between the period pre implementation of the 2005 Act and post implementation of the 2005 Act. The reason for this is that the data held in respect of common law assault and breach of the peace does not include information relating to the occupation of the victims and so pre 2005 Act data cannot show the incidences of assaults and breaches of the peace against emergency workers.

Supporters of Hugh Henry’s Bill have pointed to the ‘success’ of the 2005 Act as a reason as to why this Bill should be supported. It is certainly true to say the 2005 Act is being used by prosecutors in libelling charges, but we do not believe this equates to a ‘success’ of the 2005 Act in itself. In fact, one of the main policy drivers for the 2005 Act was to act as a deterrent to those who may attack emergency workers. As such, if we wished to define ‘success’ with only reference to the data, we would expect the number of offences under the 2005 Act to fall in number as the deterrent effect operates rather than rise as has happened. However, it is probably easiest if no final conclusions are drawn at all given the difficulties in analysing what the 2005 Act data shows.

Another justification given by supporters of the Bill is that a specific statutory offence will ensure the justice system takes more seriously offences against public facing workers. The Crown Office have confirmed that prosecutors deal with every case on its own merits with each case being considered on its own facts and circumstances. If it is established that a crime had been committed against a relevant public service worker in the course of their employment, then the fact that the offence is alleged to have occurred while the victim is providing such a public service is certainly one of the factors which Procurators Fiscal take into account when deciding what action should be taken in the public interest. Moreover it is viewed as a serious common law aggravating factor and a robust prosecutorial approach is adopted.

Anecdotal evidence suggests that courts do take very seriously cases of assault against public facing workers. For example, a recent case where two accused were convicted on indictment at Glasgow Sheriff Court of the assault of a taxi driver with an axe and robbery of his vehicle. The accused were sentenced to 6 years and 45 months imprisonment respectively. Another recent case from Perth, where an accused pled guilty on indictment to assaulting a nurse by lunging at her, seizing and restraining her by the body and holding a syringe and needle at her neck. The accused was sentenced to 16 months imprisonment.

Another recent Perth case, where an accused pled guilty to shoplifting and thereafter struggling with a member of the shop staff causing them injury. The accused was sentenced to imprisonment for a period of 2 months imprisonment for the shoplifting; and 5 months imprisonment for the breach of the peace by struggling with the shop worker. The court instructed that the sentences run consecutively, so that is a total of 7 months imprisonment. Although anecdotal, these cases help show there is no evidence to support the view that the justice system does not take seriously assaults on public facing workers.

There was a Parliamentary debate on 20 May 2010 relating to protection of workers (Labour used some of their opposition time to hold the debate). During the course of that debate, there was considerable discussion of the importance of practical steps that can be taken to help protect public facing workers from assault. The Scottish Government funds the Scottish Business Crime Centre (£777,706 for the period 2008/11) to raise awareness of business crime, including shop lifting, and support businesses to combat business crime. The Centre provides practical advice to the business and commercial sectors on how to develop business crime reduction and prevention strategies and aims to reduce business crime. Its current activities and initiatives include Best Bar None; Safer Shopping Award; Safer Parking Initiative; and Radio Link Schemes.

Also during the Parliamentary debate on 20 May, some MSPs raised the role of rebalancing Scotland’s unhealthy relationship with alcohol as a means of treating the cause of many crimes, including attacks on public facing workers. A Scottish Prison Service 2009 survey found that 50% of prisoners who responded to the survey indicated they were under the influence of alcohol at the time they committed their offences. The situation in relationship to drugs is not significantly different with 45% of prisoners (who responded to the same 2009 survey) indicating they were under the influence of drugs at the time they committed their offences.

Conclusion

In summary, we do not see Hugh Henry’s Bill as being necessary given:
  • we should be treating the underlying causes of many of the attacks on public workers which includes Scotland’s unhealthy relationship with alcohol and drugs which is why we have included measures in the Alcohol etc (Scotland) Bill designed to reduce consumption and harm, and why our drugs strategy should be supported;
  • the Bill seeks to replicate statutory offences for conduct that is already against the common law of assault and as such does not add value to the criminal law;
  • practical steps have a bigger role to play than re-writing the criminal law; and
  • there is no clear evidence that the 2005 Act has been a success in acting as a deterrent (with the data showing a moderate increase over time in the number of attacks).

Scottish Government
September 2010

SUBMISSION FROM SCOTTISH TRADES UNION CONGRESS (STUC)

Introduction

1. The STUC is Scotland’s trade union centre. Its purpose is to coordinate, develop and articulate the views and policies of the trade union movement in Scotland; reflecting the aspirations of trade unionists as workers and citizens.

2. The STUC represents over 650,000 working people and their families throughout Scotland. It speaks for trade union members in and out of work, in the community and in the workplace.

3. Our representative structures are constructed to take account of the specific views of women members, young members, Black/minority ethnic members, LGBT members, and members with a disability, as well as retired and unemployed workers.

4. We believe that all workers have the right to work in a safe and healthy working environment and to be treated with dignity and respect by colleagues and members of the public they come across during the course of their work.

5. The STUC is pleased to provide the following evidence to the committee on the proposals from Hugh Henry MSP in the Protection of Workers (Scotland) Bill.

Background

6. The STUC welcomed the introduction of the Emergency Workers (Scotland) Act 2005 as we were firmly of the view that the law as it stood was not seen as having a deterrent effect on those that carry out attacks on workers, especially those who are providing potentially life saving services in communities throughout Scotland. However, along with many of our affiliated organisations we felt that many groups of workers who face verbal and physical abuse as part of their work had been excluded from the protection that the new Act would provide. The previous administration agreed to work with the STUC to introduce a package of non-legislative measures to raise awareness of the issues on workers and the general public. This included publicity campaigns and support for individual trade union initiatives. This approach proved to be extremely successful but cuts in publicity budgets has to a great extent ended this work.

7. The STUC continues to work with the Scottish Centre for Healthy Working Lives, our affiliates and other stakeholders to develop innovative ways to ensure workers are protected against violence, the most recent example involved working with local authorities to develop a toolkit to help manage violence and aggression.

8. Initiatives, such as this are useful in providing employers with resources to protect staff and workers with a greater awareness of the issue but legislation provides the only mechanism where the perpetrators of these attacks are held accountable for their actions. The STUC believes that where the Emergency Workers Act applies, on the whole attacks are in decline. One caveat to this view would be that we have concerns that attacks against the “blue light” emergency services still appear to be viewed as sport by an element in our society as the recent example of fire-fighters in Edinburgh having hoses slashed exemplifies.

Emergency Workers (Scotland) Act 2005 (EWA)

9. Figures from the Scottish Government show that since the legislation was introduced prosecutions under the Act have increased steadily from 232 in 2005-06 to 524 in 2008-09. A total of 2021 cases have been reported to the COPFS of which 1656 have resulted in court proceedings, out of which 1159 have resulted in convictions with further proceedings continuing at the end of the financial year, 5 April 2010.

10. Around 500 convictions are secured under Section 5 of the Act following assaults of health workers in hospital premises, approximately 300 following assaults on police, fire and ambulance workers and a similar amount following assaults on the remaining categories of workers covered by the legislation.

Protection of Workers (Scotland) Bill

11. The STUC welcomes the Bill being proposed by Hugh Henry MSP as we do not believe that any civilised society can afford to sit back and not take action when over 30,000 citizens are being subjected to unacceptable behaviour that, in some cases, would result in prosecution of the perpetrator had the attacks happened in some other environment other than the workplace.

12. If legislation is not introduced then our fear would be that attacks will continue to increase and verbal and physical abuse against workers delivering services to the public will continue to increase and will result in a greater public acceptance of this type of behaviour. This may result in services being withdrawn from local communities with businesses closing down as a result of rising violence against owners and their staff.

13. As outlined above the amount of prosecutions under the Emergency Workers Act have increased since its introduction. Unison reports a reduction in attacks in public sector workplace they organise where their members, primarily health workers, are covered by the EWA. Where their members are not covered they have witnessed an unacceptable rise in incidents. The STUC believes it would be wrong to assume that this rise can be attributed solely on better reporting procedures. A 50% increase in attacks on local government workers may be partly explained by more effective reporting but we would argue is more likely to reflect a general increase in attacks.

14. The STUC believes that the Government has to decide that all attacks against workers serving the public are unacceptable and should be easier to prosecute. The level of proof for such an offence should include impeding workers delivering public facing services. This is something that has been omitted at this stage of the process and would deliver more effective prosecution of the offence.

15. Evidence from PCS raises concerns that any legislation arising from the Bill may not cover verbal assaults. From discussions with PCS and other affiliates verbal assaults can be extremely threatening and quite often place workers in a state of fear and alarm. These threats include workers being told that the perpetrator knows where they live and what time they finish work. Many see incidents of verbal abuse as being at the lower of violent attacks but incidents where individual workers are being personally threatened have to be within the scope of criminal prosecution.

16. The evidence provided from our affiliate ASLEF provides an example of the scale of assaults on their members, the impact it has and also the level of disruption faced by members of the public. We believe that introducing similar definitions for offences committed under the Emergency Workers Scotland Act and those proposed in the Protection of Workers (Scotland) Bill are justified and logical. It should then be left to the powers of the judiciary to balance the seriousness of attacks against workers carrying out life saving services against other workers when sentencing offenders.

17. The evidence provided to the STUC so far indicates a widespread problem of verbal and physical abuse. The STUC believes that the general public would be appalled if this level of crime was occurring elsewhere in our society and public policy decisions, including to introduce legislation, were not being taken to ensure that the law acts as an effective deterrent in these cases.

18. We believe that attacks against workers are not being prosecuted under existing legislation as some commentators appear to believe. We also to hear unhelpful views expressed that for more serious cases adequate deterrence is provided by the law on common assault and these cases can be tried under solemn procedure with stiffer penalties available. This view only confuses the issue of assaults against workers of the type this Bill seeks to protect.

19. We are fully aware that for more serious assaults, for example those involving weapons and serious injury, then perpetrators will face stiffer penalties in excess of those available under the Emergency Workers Act. This has never been in dispute by trade unions and we would expect this to be the case.

20. The STUC notes from the explanatory notes that there might be an anticipated cost saving on resources as a result of less attacks on public facing workers. As the notes rightly state this should not be the primary purpose of this legislation. However, the STUC believes that consideration should be given to the positive financial impact that effective legislation may have, not just on individuals but also as a result of workers not having to access health services and employers not having to access sick pay or other welfare benefits.

Conclusion

21. The STUC believes that legislation is now necessary to protect all workers who serve the public. We do not agree that the sole purpose of this legislation is to send out a message to the public that this type of behaviour is unacceptable although that will undoubtedly be a welcome consequence of the Scottish Parliament introducing effective legislation.

22. Legislation is required to address the rising number of attacks against workers. It is wrong to say that this increase is only attributable to better reporting, an outcome of the package on non legislative measures that the STUC supported wholeheartedly.

23. Introducing effective legislation to protect workers serving the public meets some of the Government’s key objectives for a safer and fairer Scotland; workers will feel safer in the work environment and in their communities knowing attackers are more likely to face prosecution. We would envisage fairer communities with public businesses less likely to withdraw services from trouble spots, often deprived communities. In light of the figures provided by ASLEF and Unison we would also envisage a healthier Scotland if levels of absences from work and ill health reduce in line with lower levels of assaults on staff.

Scottish Trades Union Congress
September 2010

SUBMISSION FROM THE LAW SOCIETY OF SCOTLAND

INTRODUCTION

1. The Criminal Law Committee of the Law Society of Scotland (“the Committee”) welcomes the opportunity to comment upon the general principles of the Protection of Workers (Scotland) Bill which was introduced into Parliament by Hugh Henry MSP on 1 June 2010. The Committee should like to respond to the Scottish Parliament’s Economy, Energy and Tourism Committee’s call for written evidence upon the general principles of the Bill in the following terms.

GENERAL COMMENTS

2. The Committee previously responded to the Scottish Executive consultation entitled “Protection of Emergency Workers” in February 2004 and also responded to the public consultation by Hugh Henry MSP entitled “Workers (Aggravated Offences) (Scotland) Bill” in August 2009. The Committee remains of the view that, with regard to assaults upon workers employed in professions involving face to face contact with the public, educational programmes and awareness raising events are essential in reinforcing the message that any assault on a public facing worker, especially those in the emergency services, is clearly unacceptable and should be dealt with by the Court severely. The Committee maintains the view that the position with regard to common law at present providing protection from assault for everyone and allowing aggravating circumstances such as whether or not it was an assault of a worker in the course of that worker’s employment can be taken into account, both in determining the forum for prosecution and the level of sentence upon conviction.

3. In its response to the public consultation by Hugh Henry MSP in August 2009, the Committee then stated that it was unclear whether an assault on a worker providing a service to the public and in doing so coming into face to face contact with the public would be libelled as an aggravation of common law assault, or indeed would be libelled as a separate new offence. The Committee now notes that, in terms of the Bill, it is the intention to libel such an assault as a separate new offence.

4. The Committee again refers to paragraph 3 of the Scottish Executive consultation paper entitled “Protection of Emergency Workers” published in 2004, at which consideration was given to public service workers in non emergency situations.

5. In particular, paragraph 3.5 of the consultation paper stated:-

“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 wide awareness and educational campaigns”.

6. The Committee, believes that such non legislative measures would be more effective in reinforcing the message that it is unacceptable to assault a public service worker, especially those in emergency services as referred to above.

SPECIFIC COMMENTS

Section 1 – Assault of Workers

7. The Committee notes the definition of worker at Section 1(3) meaning a person whose employment involves dealing with members of the public, to any extent, but only if that employment involves –

(a) being physically present in the same place and at the same time as one or more members of the public, and

(b) (either or both) –

(i) interacting with those members of the public for the purposes of employment or

(ii) providing a service to either particular members of the public or the public generally.

“employment” means any paid or unpaid work whether under a contract, apprenticeship or otherwise.

8. With regard to the defence as outlined at Section 1(2)(a) of the Bill, while proof of knowledge on the part of the accused may not be problematic in cases where there is a recognisable uniform worn by an emergency worker, this may be more problematic with regard to other workers whose employment involves dealing with members of the public.

9. Accordingly, the evidential burden of proof under a statutory offence such as the one proposed here may therefore be greater and, conversely it may be more difficult to secure a conviction.

10. The Committee also notes an offence of assault on a worker by reason of that worker’s employment and that no offence is committed unless the assault is motivated, in whole or in part, by malice towards the worker by reason of the worker’s employment.

11. Again, there is an evidential burden of proof for the Crown to establish that the assault was by reason of that worker’s employment and also motivated, in whole or in part, by malice towards the worker by reason of the worker’s employment.

12. The Committee in its response to the Workers (Aggravated Offences) (Scotland) Bill public consultation last year referred to the then Lord Advocate’s comments made to the Scottish Parliament on 15 January 2004, at which the proposal for an Emergency Workers (Scotland) Bill was debated.

13. The Committee should like to reiterate those comments which were as follows:-

“The Lord Advocate referred to a 19th century Scots lawyer who recognised that “assault may be aggravated by it being committed on an official performing a public duty”.

The Lord Advocate further stated that “In the 21st century the principle has developed to recognise the special position of all workers who provide a public service, embracing a vast variety of services on which we as a society now rely. The flexibility to which I have referred has allowed our Criminal Justice system to keep pace with the times, offering effective means of dealing with new or emerging blights on society. Our courts have been able to get on with the business of bringing to justice those who fail to respect people who delivery valuable services to society without getting caught up in the technical arguments about who does or does not fall to be protected in such a way. I suggest that that would inevitably be the result of prescribing in statute the particular category of workers who are entitled to special protection”.

14. The Lord Advocate offered MSPs the following practical example:-

“A bus driver stops a bus at a bus stop and a youth gets on. There is an altercation and a dispute about the youth paying. As a result the youth is asked to leave the bus. Before he does so, he spits at the bus driver – a nasty, disgusting offence that deserves to be punished. As the youth gets off the bus, an old lady in the street remonstrates with him about what he has done. He spits at her and then leaves. Those who argue for a statutory aggravation in those circumstances would have the court impose a greater sentence for the spitting at the bus driver than for the spitting at the old lady in the queue. To some people, that might be appropriate because the first victim was a bus driver. However, I think that most people would suggest that the punishment in both cases should be equivalent. That is the problem of having an aggravation.

15. The Committee endorses these comments.

Section 2 Penalties

16. The Committee notes that the statutory penalty proposed for the new offence of assaulting a worker is, on summary conviction, to imprisonment for a period not exceeding twelve months or to a fine not exceeding the prescribed sum within the meaning of Section 225(8) of the Criminal Procedure (Scotland) Act 1995 or to both.

17. The Committee notes that this penalty is identical to the penalty for any common law offence in terms of Section 5 of the Criminal Procedure (Scotland) Act 1995 as amended by section 43 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.

18. The Committee further notes that Section 225(8) of the Criminal Procedure (Scotland) Act 1995 which prescribes the standard scale of fines for offences triable only summarily (“the standard scale”) is now, in terms of Section 28 of the 2007 Act, £10,000.

19. The Committee notes that the creation of this new statutory offence with identical penalties to assault at common law tried summarily detracts from flexibility and imposes evidential burdens upon the Crown which would not of course apply at common law.

Section 3 Savings for certain offences

20. The Committee notes that Section 41 of the Police (Scotland) Act 1967 and the Emergency Workers (Scotland) Act 2005 remain unaffected by this proposed legislation.

The Law Society of Scotland
September 2010

SUBMISSION FROM UNISON SCOTLAND

Introduction

1. UNISON is Scotland’s largest trade union representing over 160,000 members working in public services. We represent those working in the public sector, for private contractors providing public services and in the essential utilities. They include frontline staff and managers working full or part-time in local government, health, and education, as well as police staff, those working in the electricity, gas and water industries and those in the voluntary sector.

2. UNISON Scotland welcomes the opportunity to participate in the Call for Written Evidence on the Protection of Workers (Scotland) Bill

General Comments

3. UNISON Scotland is very pleased to support the aims of the Protection of Workers (Scotland) Bill, which we believe will provide greater protection for many of our members who are not covered by the Emergency Workers (Scotland) Act (EWA).

4. UNISON Scotland campaigned for and welcomed the introduction of the EWA in 2005. We would have wished to see legislation much wider in scope than the Bill as originally drafted. We favoured a Bill covering public service workers with similar scope to that set out in the Lord Advocate’s guidance and it remains our view that the Bill should have given statutory effect to that guidance, recognising that workers providing a service to the public should be given specific legal protection.

5. Since the introduction of the Emergency Workers Act (EWA) in 2005 UNISON Scotland has sought to widen the scope of the provisions to incorporate a wider group of public service workers. In January 2005, the Scottish Government promulgated a Modification Order that extended the Act to a limited number of additional health staff. Whilst welcoming any extension we argued that this was only a limited provision that did not cover the main groups of staff at risk of violence and resulted in a two-tier level of protection for staff.

6. We followed up our concerns with the Minister for Public Health and later the Cabinet Secretary for Justice who now has responsibility for general matters in relation to the Act. We are currently in discussions with Fergus Ewing, Minster for Community Safety, but these discussions are proceeding at a very slow pace.

7. One of the main advantages of the EWA was the clause that provided for “hindrance and/or obstruction of the workers specified in it” to be an offence and we believe that any new legislation or amendments should include this principle.

8. There were significant objections to the Emergency Workers (Scotland) Bill including the Law Society and Faculty of Advocates who argued that the common law and other statutory provisions cover most of the Bill’s provisions. It was even claimed that there would be no successful prosecutions. However, the Act has been used extensively with well over 1000 prosecutions to date and a number of cases attracting publicity, primarily at local level.

9. UNISON Scotland is pleased that successive Scottish Governments have recognised the nature and the scale of the problem in relation to violence against workers in the public services. We view legislation as only one part of a wider package of measures to achieve a reduction in violent incidents.

10. UNISON Scotland has been concerned at the level of violence reported by our members over a number of years. In 2002 research was commissioned and a survey of members carried out to ascertain the level of assaults, both physical and verbal, experienced by the group of workers who took part in the survey. The resulting, Trauma 2003 Report highlighted some horrific instances of assault, across all parts of the public sector.

11. Since that time, the issue of workplace violence has been moved higher up the public agenda and deliberate acts of violence on public service workers is, rightly, condemned by most members of the public. However, there is a reluctance on the part of some employers and even some staff, to acknowledge assaults by “looked after people”, e.g. children, elderly people, or those with learning disabilities, as there are in some instances perceptions that these types of assaults are just part of the job and have to be tolerated. Since 2003, however, the Scottish Government has accepted the extent of violence against public sector workers and has been working with trade unions to examine ways to tackle the problem.

12. In 2006 UNISON undertook a survey of public service employers under the Freedom of Information Act on assaults against public sector workers and based on the responses, published a major report. This identified some 20,000 violent incidents that year in the NHS and local government alone. This has been followed up with annual surveys that show that the numbers of violent incidents remain high. This may of course partly reflect greater awareness and better reporting, however, it is clear the problem is not going away. The 2006 report highlighted significant failings at employer level over the quality of local violence at work policies, their implementation and most importantly, the lack of adequate monitoring statistics. There has been some strengthening of measures in NHS Scotland since then and work has been undertaken with representatives of Scottish local authorities to develop best practice guidelines. As a result of this work, guidelines for local government were published early in 2010, entitled “Managing occupational violence in the workplace”.

13. UNISON Scotland believes that attacks on any staff delivering public services should be treated under the law as serious assaults, not just attacks on emergency workers. We believe that in practice it is impossible to make a distinction between the risks faced by an emergency worker (e.g. paramedic) and a non-emergency worker (e.g. a porter).

14. The experience of our membership and the results of crime surveys inform us that the most vulnerable workers are not necessarily emergency services workers – all workers who deal with the public are at risk. Care workers faced twice the national average risk of assault and nurses four times. The current EWA list with its emphasis on ‘blue light’ services has the consequence of providing protection to predominantly male groups of workers. This is an equal opportunities issue.

15. The following groups of our members face daily risks when facing the public, but are not covered by the EWA and we believe that the proposed Bill would protect them:

  • Healthcare: The EWA list restricts this category to those with a professional registration but there are many healthcare workers who are not part of this category. In addition the ‘assisting’ provisions would not cover them. The main group would be nursing assistants but it would also include a range of ancillary staff including security and porters, as well as Professions Allied to Medicine who also work in A&E and other emergency settings.
  • Social care: Many social care staff including social workers and those in mental health and childcare protection roles regularly respond to emergency situations, but are not covered by the EWA. We also need to remember that a range of health and social care staff in the voluntary sector are at equal risk.
  • Environmental: Several groups of environmental workers work in potentially violent situations. Some SEPA staff, port authorities, housing, environmental health, pest control, roads and even some Leisure services staff including pool attendants are regularly faced with violent members of the public.
  • Utilities: Scottish Water staff and workers in the energy companies regularly respond to potentially dangerous situations. This is not limited to National Grid Transco but includes gas workers employed by other energy companies and electricity line and response staff.
  • Police: With the increasing civilianisation of the police force a range of police staffs other than constables are faced by violent members of the public. Similar provisions apply to community wardens who are usually employed by local authorities.

16. All of the above workers and others are, in the words of the Minister who promoted the EWA, justification for the definition, “out in the community protecting life and limb. They are out there to protect us and any hindrance to them puts other people’s lives at risk”.

17. Our preference would be for a generic definition of public service worker operating “in the performance of their duties”. This would ensure that all public service workers were offered the same level of legal protection.

Protection of Workers (Scotland) Bill

18. As stated above, UNISON Scotland is pleased to support the introduction of this Bill. However, we believe there are areas where it could be strengthened and we will endeavour to effect this during the Second reading of the Bill.

19. In particular, there needs to be a definition of what is meant by “a member of the public” [S 1(1)], as well as what is meant by an assault.

20. The EWA concept of ‘hinder or obstruct’ is particularly useful in circumstances where a strict assault may be difficult to prove. We believe that more consideration will be required about applying this in the context of the wider public service grouping envisaged in the Bill.

21. We require clarification about Clause 1(3) (a) which states that a worker should be “physically present in the same place and at the same time as one or more members of the public”. This would rule out, for example, phone rage, as the worker would not be “physically” present, but could still experience verbal abuse over the telephone. In addition, there could be occasions when workers experience abuse over the internet or through the e-mail system, but again, would not be physically present with the abuser. The Committee will be aware that the Scottish Government, working closely with the trade unions, under the project, Safe at Work, introduced guidance on phone rage in 2007. They agreed with the HSE advice that "physical attacks are obviously dangerous but serious or persistent verbal abuse or threats can also damage employees' health through anxiety or stress".

22. Other statements in section 1 (3) also appear to contradict paragraph 2 of the Policy Memorandum accompanying the Bill which states that “The offence covers assaults” . . . “that take place at other times but which relate to their work. Clause (3) (b) (i) and (ii) of the Bill imply that any assault has to take place while the worker is engaging with the member of the public or providing a service whilst at work. UNISON Scotland believes that there can be occasions when workers are attacked outwith their work but as a result of carrying out their duties on another occasion. One obvious example of this would be a worker in a pub who could be attacked after his or her shift, if they had perhaps ejected a customer from the premises. The assault would be as a result of carrying out duties in the pub, but occur after the shift had finished.

23. UNISON Scotland will aim to amend these anomalies at a later stage in the passage of the Bill.

Conclusion

24. UNISON Scotland is happy to support the introduction of the Protection of Workers (Scotland) Bill as we believe the current provision in the Emergency Workers (Scotland) Act does not begin to cover the extent of our membership who suffer violent attacks in the course of their work. We believe that the proposals contained in the Bill will provide far greater protection for our members and we welcome its introduction.

25. As we have said previously, there are points in the bill which require further clarification or amendment, but these can be examined during the later stages of the Bill.

26. We would urge the Committee to support the Bill through its various stages.

UNISON Scotland
September 2010

SUBMISSION FROM UNITE SCOTTISH REGION

1. Overview

1.1 Unite represents around 200,000 working people and their families throughout Scotland. We are the UK’s largest trade union with 2 million members in a range of industries including transport, energy, construction, financial services, manufacturing, print and media, the voluntary and not-for-profit sectors, local government and the NHS.

1.2 As Scotland’s largest and most industrially diverse trade union, we are acutely aware of the problems many of our members face with regards to the threat of and actual incidence of physical violence while they try to earn a living and provide quality services to the general public. Unite therefore welcomes the opportunity to contribute to this call for evidence by the Scottish Parliamentary Economy, Energy & Tourism Committee.

1.3 The Bill itself represents a positive and necessary step forward in the progress of statutory coverage that would provide improved health and safety protection for workers providing a public service in Scotland. It would also send out a clear message to the Scottish public that physical and verbal violence against any worker who provides a public service will not be tolerated and such actions could lead to prosecution under law.

2. The Need for Further Legislation

2.1 The need for further legislative intervention is urgent and the case is compelling. In 2007/08 there was a 9% increase on the previous year’s figure for assaults against public sector workers in Scotland. As the author highlights, the British Retail Crime Survey report detailed an alarming 50% increase in physical assaults against shop workers compared to the 2006 figure.

2.2 The Emergency Workers (Scotland) Act (EWA) of 2005, and its subsequent extension in 2007, represented an important step forward. A public sector trade union reported that in 2007/08 the number of assaults on health workers fell by more than 1000 on the 2006/07 figure and suggested this decline could be attributed to the introduction of the EWA provisions. The EWA’s impact is further evident in the Scottish Government’s statistics of increase of persons successfully prosecuted in the Scottish courts under the Act in the immediate period following its introduction (categorised by Policy Authority):

Police Authority 2005-06 2006-07
Northern 1 8
Grampian 4 9
Tayside 1 6
Fife 1 19
Lothian and Borders 23 49
Central - 8
Strathclyde 19 87
Dumfries and Galloway 5 14
Scotland 54 200

2.3 While this statistical snapshot indicates both the positive impact and value of the legislation as a deterrent to assaults on these workers the fact remains that such rights should not be exclusive to a specific industry or occupational classification providing a public service - these rights should be extended to all workers defined as providing a public service.

2.4 Given the ‘success’ of the EWA we would warmly welcome the extension of these protections to every worker in Scotland who provides a public service. This must not only be restricted to the parameters of the public sector, it must include coverage to the likes of the transport, finance and retail sectors for example. The underlying principle should be that if dealing with the public or serving the public is part of the job specification then the protection is applied.

2.5 More serious offences made by the public against workers should still be tried under solemn procedure but the introduction of legislation which enshrines the possibility of a maximum 12 month jail sentence or significant financial penalty for any incident of physical or verbal abuse would serve as a further deterrent and tackle the rising tide of violence against workers.

2.6 Until greater protective measures are introduced the vast majority of public service workers employed outside the parameters of the Emergency Workers Act will continue to be more prone to incidents of violence.

3. Unite Case Study – SPT Subway

3.1 The extension of the Emergency Workers Act provisions could have a significant impact on the everyday lives of workers like those employed SPT on the Glasgow Subway. Over the last four years workers on the subway have had to contend with a marked rise in the number of anti-social behaviour and assault incidents made against them by members of the public.

3.2 This level of incident peaked in 2007 when approximately 65% of all accident and incident statistics involving employees were of an anti-social / assault nature. This level decreased in 2008 to 33 reported incidents but this still accounted for over 50% of all incidents reported.

Year 2005 2006 2007 2008
Reported Incidents of Anti-Social Behaviour / Assault against Employees 11 50 51 33
% of all Incidents Reported 38% 54% 65% 51%

Source: SPT Subway Accident & Incident Statistics 2008

3.3 Unite members at SPT have worked hard with their employer in order to tackle the scourge of violence against workers and these efforts have yielded some success after a recent peak in such incidents, as the statistics show. However, our members are clear that voluntary initiatives alone are insufficient to sustain a challenge on the incidence of anti-social and violent behaviour on the subway.

3.4 Unite Convenor at SPT Subway Harry Copland insists that, “If the public are aware that any incidence of abuse - physical or verbal - will not be tolerated and such actions could result in a set criminal conviction or significant financial penalty enshrined by law, I believe you would see a further decline in the levels of violence against our staff.

3.5 The Emergency Workers Act has had a very positive impact in reducing incidents of violence against workers in the health sector and ensuring that perpetrators are prosecuted. It stands to reason that similar legislation covering workers like ourselves in the transport sector would have the same positive impact and it is needed.

3.6 It would be in everyone’s interests. Workers would be more secure in their jobs, employers would have an even more productive workforce and the public experience of the subway service would be further enhanced with a reduced rate of violent incidents.

3.7 In the last year, there have been 18 incidents of anti-social behaviour / assault reported. These range from instances of subway drivers being verbally abused, spat on and Community Safety Officers (CSOs) on the subway being physically assaulted by members of the public.

4. Conclusions

4.1 This call for evidence creates a welcome platform for debate, not only in the Scottish Parliament but in the wider context of the Scottish workforce. It also begs the question on why we have a de facto two-tier legislative system for workers who provide a service to the public.

4.2 Unite welcomes any legislative proposal that makes the world of work a healthier and safer experience and this Bill would help work towards this objective. The concluding remarks are best left to the workers who would benefit from these proposals:

4.3 “We believe Protective rights such as the Emergency Workers (Scotland) Act, while welcome, should not be exclusive to a specific industry or occupational classification providing a public service - these rights should be extended to all workers defined as providing a public service.

4.4 Violence and aggression is an issue which mars the working life of many workers providing a public service – including my own members in local government. Sometimes because we work with challenging or vulnerable people whose reactions to stressful situations is to lash out. Sometimes we are just seen as an easy target to people wanting to vent their frustrations.

4.5 Our branch has had to handle a pattern of frequent violent and aggressive incidents at some times. The worst incidents involved very serious injuries, both physical and mental, hospitalisation, and job redeployment and in the worst instance the premature end to a career.

If this Bill can help send a message out that violence and aggression towards our members wherever they work is simply unacceptable then clearly that’s a benefit.”

Kim Smith, Unite Branch Secretary, Dundee Local Government
August 2010


Footnotes:

1 Protection of Workers (Scotland) Bill. Available at: http://www.scottish.parliament.uk/s3/bills/47-ProtectWorkers/index.htm

2 Protection of Workers (Scotland) Bill, Explanatory Notes. Available at:
http://www.scottish.parliament.uk/s3/bills/47-ProtectWorkers/b47s3-introd-en.pdf

3 Protection of Workers (Scotland) Bill, Policy Memorandum. Available at:
http://www.scottish.parliament.uk/s3/bills/47-ProtectWorkers/b47s3-introd-pm.pdf

4 S3M-6527 Bruce Crawford on behalf of the Parliamentary Bureau: Designation of Lead Committee

5 Emergency Workers Scotland Act 2005. Available at: http://www.opsi.gov.uk/legislation/scotland/acts2005/asp_20050002_en_1

7 Scottish Parliament Debate, Official Report, 20 May 2010, Col 26386.
http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-10/sor0520-02.htm#Col26381

8 Workers Aggravated Offences (Scotland) Bill, consultation responses. Available at: http://www.scottish.parliament.uk/s3/bills/MembersBills/documents/Consultationresponses-WorkersBill-HughHenryMSPFinal.pdf

9 Consultation Responses for Hugh Henry MSPs proposal for a ‘Workers (Aggravated Offences) Bill (Scotland)’. Available at: http://www.scottish.parliament.uk/s3/bills/MembersBills/documents/Consultationresponses-WorkersBill-HughHenryMSPFinal.pdf

10 Policy Memorandum, paragraph 7.

11 Financial Memorandum, paragraph 17.

12 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4010.

13 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4068.

14 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4013.

15 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4066.

16 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4000.

17 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4072.

18 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4076.

19 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4003.

20 Association of Chief Police Officers in Scotland. Written submission to the Economy, Energy and Tourism Committee.

21 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 10 Novernber 2010, Col 4315.

22 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4055.

23 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 3999.

24 Crown Office and Procurator Fiscal Service. Written submission to the Economy, Energy and Tourism Committee.

25 The Law Society of Scotland. Written submission to the Economy, Energy and Tourism Committee.

26 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4012.

27 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 6 October 2010, Col 4133.

28 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4011.

29 Emergency Workers (Scotland) Act 2005 (Modification) Order 2008. Available at: http://www.opsi.gov.uk/legislation/scotland/ssi2008/draft/sdsi_9780110801810_en_1

30 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4002.

31 Scottish Government. Written submission to the Economy, Energy and Tourism Committee.

32 Royal College of Nursing Scotland. Written submission to the Economy, Energy and Tourism Committee.

33 Crown Office and Procurator Fiscal Service. Written submission to the Economy, Energy and Tourism Committee.

34 Scottish Government. Letter from the Cabinet Secretary for Justice dated 1 November 2010.

35 Crown Office and Procurator Fiscal Service. Written submission to the Economy, Energy and Tourism Committee.

36 Scottish Government. Written submission to the Economy, Energy and Tourism Committee.

37 Violent Assaults on Public Service Staff in Scotland Follow up Survey 2009. Available at:
http://www.unison-scotland.org.uk/news/2010/septoct/2510.htm

38 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4075.

39 Scottish Government. Written submission to the Economy, Energy and Tourism Committee.

40 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4001.

41 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4020.

42 Scottish Government. Written submission to the Economy, Energy and Tourism Committee.

43 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4071.

44 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 4007.

45 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 6 October 2010, Col 4124.

46 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 10 November 2010, Col 4308

47 Association of Chief Police Officers in Scotland. Written submission to the Economy, Energy and Tourism Committee.

48 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 10 November 2010, Col 4315

49 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4058.

50 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 22 September 2010, Col 3999.

51 Scottish Parliament Economy, Energy and Tourism Committee, Official Report, 29 September 2010, Col 4057.

52 An amendment to this paragraph was disagreed to by division. The result was: For 3
(Lewis Macdonald, Wendy Alexander and Marilyn Livingstone) Against 5
(Stuart McMillan, Rob Gibson, Christopher Harvie, Gavin Brown and Iain Smith)