"Protecting" doctors, again (and more besides)

An earlier post on this blog noted the Government’s intention to extend the Emergency Workers (Scotland) Act 2005 to cover GPs and other primary health care staff. Yesterday, in line with that proposal, the Justice Committee approved the draft Emergency Workers (Scotland) Act 2005 (Modification) Order 2008. For the Official Report of the Committee’s proceedings, click here.

As predicted earlier, the proposed change did not meet with opposition. Instead, there was much discussion about the availability of statistics of assaults on emergency workers, although it is not clear to what use these could have been put or how they could have affected the Committee’s recommendation. A couple of features of the discussion are of note, however:

First, the Minister for Public Health, Shona Robison, used statistics to argue that the 2005 Act has been a success, as follows:

“I will share some information on the success that has been achieved so far. According to the most recent figures, 1,256 charges have been laid under the 2005 act, of which 1,008 have led to prosecution and, thus far, 594 convictions. A further 218 cases are on-going. Seventy-five per cent of cases that have led to prosecution have resulted in convictions, which is a very high number indeed. I suggest that that shows the success of the act.” (col 469)

Quite apart from the fact that we (inevitably) have no pre-Act figures to draw comparisons with, it is difficult to see how this shows “success”. (Apart from anything else, we have no idea what the test of “success” is – what figures would constitute failure?) But prosecutions under the 2005 Act are necessarily summary proceedings, where over 90% of cases are concluded by way of a guilty plea without even proceeding to trial. (See F Leverick, ‘Plea and confession bargaining in Scotland’ (2006) 10(3) EJCL, at 17.) Against that background, describing a seventy-five per cent conviction rate as “a very high number indeed” makes little sense.

Secondly, committee members expressed concern that the “protection” offered by the 2005 Act did not extend more widely. (Optometry Scotland had made a formal submission in respect of optometrists and dispensing opticians, for which see the Committee papers, J/S3/08/1/3). The Minister’s response was to say that further extension would require primary legislation, and that her “door was open” in this regard, although she was "not minded" at present that this was necessary.

This drive to extend the “protection” offered by such legislation – even when it is doubtful whether any such effect exists – is well illustrated by another announcement yesterday, when the Government said that it would support Patrick Harvie MSP’s proposal for a Sentencing of Offences Aggravated by Prejudice (Scotland) Bill (see this press release, and click here for more detail on the original proposal). The proposed bill would “require the aggravation of an offence by prejudice on grounds of disability, sexual orientation or transgender identity to be taken into account in sentencing”, as racial and religious prejudice already are.

The proposal seems to have sufficient support to make it into legislation, but was criticised by Bill Aitken as the Conservative party justice spokesman, who said “In Scotland, we pride ourselves in the fact that we are all equal in the eyes of the law but some it now seems are more equal than others, which cannot be right” (see this BBC News report). One correspondent in the lively debate on Brian Taylor’s blog remarked caustically that Mr Aitken was indeed right in saying that “some people are more equal than others”, “and as a white, heterosexual, Western male you should know and benefit from that more than most”.

(It was not, incidentally, a good day for Mr Aitken: as the Justice Committee’s convenor, he concluded the discussion on the modification order by arguing that the maximum sentence under the 2005 Act should be increased from nine months to twelve, seemingly forgetting that he had made the same objection at the outset of the discussion and that the Minister had told him that this had already happened.)