Acts of the Scottish Parliament

The Risk Management Authority

Sections 3 to 13 and schedule 2 - The Risk Management Authority

30. Sections 3 to 13 and schedule 2 provide for the establishment of a new authority to be known as the Risk Management Authority (RMA) and for this authority to be a public body. These sections also confer upon the RMA certain specific statutory functions in relation to the assessment and minimisation of risk posed to the public by offenders and certain accused persons.

31. Sections 3, 12 and 13 provide for the establishment of the RMA as a public body, and for the powers the RMA requires to operate as a public body and to discharge its functions in relation to the assessment and minimisation of risk. The sections also prescribe the RMA's duties in relation to account keeping and the production of annual reports. Schedule 2 makes provision concerning the constitution etc of the RMA.

32. Sections 4 to 11 set out the RMA's functions in relation to its broad remit of co-ordinating research and promulgating best practice in the field of risk assessment and the minimisation of risk and in playing a direct part in the management of high risk offenders for whom a risk management plan (RMP) is to be prepared. These functions are :

• to develop policy and carry out research in the field of assessment and management of risk posed by offenders;

• to monitor research into and promote effective practice in the assessment and minimisation of risk by issuing guidelines and standards and to commission research and pilot schemes in this area;

• to administer a scheme of accreditation and provide or secure education and training in relation to those professionals involved in the assessment and minimisation of risk;

• to monitor risk management plans for certain classes of offender.

Section 3 - The Risk Management Authority

33. This section establishes the Risk Management Authority and provides that it will exercise the functions given to it by the Act and any other legislation to ensure effective risk assessment and the minimisation of risk. The section also defines risk as the risk the person being at liberty presents to the safety of the public at large, and covers a person convicted of an offence or a person disposed of by the court on the grounds of insanity.

34. Section 3 also introduces schedule 2, which deals with a number of matters concerning the structure and procedures of the RMA (as a public body). Schedule 2 provides for:

• the status of the new body;

• the procedures for membership of the new body, including appointment, resignation and removal from office;

• the procedure of the authority;

• the arrangements for remuneration, allowances and pension for members of the authority;

• the arrangements for the employment of staff and for their pensions, allowances and gratuities.

Section 4 - Policy and research

35. This section describes the various functions the RMA will be required to undertake in relation to its policy and research role. In relation to research, the RMA will be able to compile and keep under review research and developments in the field of risk assessment and risk minimisation, including information about how relevant services are provided in Scotland. The section also empowers the RMA to carry out its own research or commission or co-ordinate research and to publish the findings. The RMA will be able to carry out pilot schemes for the purposes of developing and improving risk assessment and minimisation methods and use the results of the research and pilots to promote effective practice throughout Scotland. This will be done through issuing standards and guidelines which are dealt with in section 5. As part of this function the RMA will also be able to give appropriate advice and make appropriate recommendations to the Scottish Ministers.

Section 5 - Guidelines and standards

36. This section enables the RMA (in pursuance of its policy and research function, prescribed by section 4) to produce, by means of guidelines, a common framework including standards within which those involved in the assessment and management of risk are to operate. The standards will be defined, approved and published by the RMA. The section also provides that those involved in the assessment and minimisation of risk must have regard to the RMA's guidelines and standards when exercising their relevant risk management functions. Practitioners involved in the field of risk assessment and the minimisation of risk may also be accredited for those purposes. This matter is dealt with in section 11.

Sections 6 to 9 - Risk management plans: preparation, further provision, implementation and review

37. As explained above, the RMA has a specific function in relation to offenders for whom a risk management plan (RMP) is to be prepared. Initially this will be for those offenders who are sentenced to an order for lifelong restriction (OLR). However, the Act makes provision for the Scottish Ministers to make an order prescribing other categories of offenders for whom a RMP would have to be prepared. There is a statutory requirement for the authorities who have responsibilities in connection with the relevant offenders when in prison or released into the community on licence to prepare a RMP. The RMP will detail the role of those authorities involved with the offender in minimising the risk the offender's being at liberty presents to the safety of the public at large. The RMA has a specific function to approve and monitor the implementation of the RMP. The provisions dealing with the preparation of the RMP, its implementation and review and the RMA's function in relation to these matters are set out in sections 6 to 9.

38. Section 6 requires that a RMP must be prepared for an offender who is sentenced to an OLR, and any other category of offender which the Scottish Ministers may, by order, prescribe. The types of offences and the process by which an offender will be assessed for an OLR, including the criteria against which his or her level of risk will be measured, are dealt with in section 1.

39. Before making an order prescribing any new category of offender for whom a RMP will be required, the Scottish Ministers must consult the RMA and any other person as considered appropriate.

40. This section also prescribes that the RMP must contain an assessment of risk, the measures to be taken to minimise this risk and how these will be co-ordinated. The form of the RMP is to be specified and published by the RMA, which may also provide guidance as appropriate on how the form should be prepared, implemented and reviewed. The authority preparing the RMP must use the published form.

41. The purpose of a RMP is to ensure that the risk the offender's being at liberty presents to the safety of the public at large (offender's risk) is properly managed on a multi-disciplinary basis and will detail the role of those authorities or bodies involved in managing the offender's risk. The RMP may place responsibility for implementing the RMP on any person who could reasonably be expected to assist with the minimisation of the offender's risk.

42. Section 7 prescribes that "the body" who will be responsible for preparing the RMP will be known as the "lead authority".

43. The identity of the lead authority following conviction will depend on the age of the offender and where the offender is liable to be detained or imprisoned.

44. There is no age limit on who may be sentenced to an OLR. If the offender is serving a sentence in prison or is being detained in a young offenders institution or is a child and is detained in some other establishment under section 208 of the Criminal Procedure (Scotland) Act 1995, the lead authority will be the Scottish Ministers. If the offender has a mental disorder and is detained in hospital under any of the provisions described in subsection (2) of section 7, the lead authority will be the State hospital or appropriate NHS authority.

45. This section also provides for a local authority to be the lead authority where the lead authority is not the Scottish Ministers or a hospital. In practice, the local authority will become the lead authority when the offender has been released from detention or imprisonment. Arrangements for transferring the lead from one authority to another, for example when an offender is released from detention or imprisonment are dealt with in section 9.

46. Section 8 sets out the preparation process for the RMP. The initial RMP is to be prepared within 9 months of the offender being sentenced or detained in hospital, although the RMA can grant a reasonable extension where an appeal under subsection (7) is pending. The lead authority is to consult any person or authority upon which it is considering conferring functions in relation to the implementation of the RMP and any other appropriate person. Those consulted are under a duty to comply with reasonable requests.

47. This section also requires the lead authority to submit the RMP to the RMA for approval. The RMA may either approve the plan or reject it if it does not comply with the minimum standards set out in section 6(3) or any other guidelines and standards which the RMA have prepared. If, in rejecting the RMP, the RMA considers that the lead authority has disregarded minimum standards or any relevant guideline, standard or requirement produced by the RMA in relation to the preparation of RMPs, the RMA can give reasonable directions to the lead authority or any person named in the plan concerning the preparation of a revised plan. Those receiving such a direction are obliged to comply with any reasonable direction. Those receiving such a direction may appeal to the sheriff against such a direction on the grounds that it is unreasonable.

48. Section 9 provides for the procedures for the implementation and review of RMPs. The lead authority and any other person having functions under the risk management plan are required to implement their respective responsibilities. If the RMA considers that the lead authority or other persons with duties under the plan are failing, without reasonable excuse, to implement the plan in accordance with those functions, the Authority may give directions to the lead authority or person concerned as to the implementation of the plan. The lead authority or relevant person is under a duty to comply with such a direction. Those receiving such a direction may appeal to the sheriff against such a direction on the grounds that it is unreasonable. The lead authority must report to the RMA annually on the implementation.

49. The section also provides a review process to be activated where there is likely to be a significant change in the offender's circumstances, for example, where the offender may be considered by the Parole Board for release on licence. Where a change is considered, the lead authority must review the RMP. If after review the lead authority considers that the current RMP is no longer suitable or is likely to become unsuitable then that authority must prepare a revised RMP and submit it to the RMA for approval within a period which the RMA may reasonably require. Where, following a review, the lead authority considers that it is no longer appropriate for it to continue as "lead" (for example where an offender is being released on licence), the responsibility will pass to a different lead authority as prescribed under section 7 and the new lead authority must prepare a revised RMP and have it approved by the RMA. The RMA's power to reject a RMP on the grounds that it does not meet agreed standards and issue directions apply equally to revised RMPs.

Section 10 - Grants to local authorities in connection with risk management plans

50. Section 10 enables the Scottish Ministers to make specific grants to local authorities subject to such conditions as they consider appropriate to assist with the preparation and implementation of the RMP. Before making such a grant the Scottish Ministers are to consult local authorities and other persons as appropriate.

51. It is expected that local authorities will bear the cost of preparing and implementing RMPs from within existing budgets on the basis that they already have a statutory duty to provide appropriate services for these offenders. However the RMA will be able to make recommendations to the Scottish Ministers concerning the granting of specific funding where it appears to the Authority that this is required to ensure that a RMP can be prepared or implemented.

Section 11 - Accreditation, education and training

52. This section gives the RMA two roles. It enables the RMA to:

• administer any scheme set up by the Scottish Ministers for the purpose of accrediting the processes of assessing and monitoring risk and practitioners who work in the area of risk assessment and minimisation. The RMA's function in this respect extends to awarding, suspending or withdrawing accreditation;

• carry out or commission relevant educational and training activities.

53. The section also empowers the Scottish Ministers to make regulations to establish appropriate accreditation schemes for the RMA to administer. The accreditation may cover any RMA-sponsored education or training and may also recognise other relevant experience or qualifications held. For example, the accreditation may recognise relevant qualification previously obtained, or obtained from a source other than the RMA. As respects the processes of assessing and minimising risk, the accreditation will provide recognition of the effectiveness of any method and practices which may be employed in that regard.

Section 12 - Functions: supplementary

54. This section makes the standard provisions required to enable the RMA to operate as a public body. In particular the RMA is empowered to acquire and dispose of land, enter into contracts, charge for goods and services and, with the consent of the Scottish Ministers, invest and borrow money. In addition it provides a power for the Scottish Ministers to direct the RMA in relation to the discharge of its functions.

Section 13 - Accounts and annual reports

55. This section provides for the standard account keeping and reporting procedures for a public body including the preparation and submission to the Scottish Ministers of annual accounts and annual reports. The Scottish Ministers must publish the RMA's annual reports and lay a copy before the Scottish Parliament.

PART 2 - VICTIMS' RIGHTS

Section 14 - Victim statements

56. Section 14 confers upon victims of certain crimes the right to make a statement about the effect of the crime upon them, which will be normally be submitted to the court after a conviction and prior to sentencing.

57. Subsection (1) provides that the Scottish Ministers are to prescribe by affirmative order those courts or class of court in which the victim is to have the right to make a statement to the court. In addition this section includes a power for Scottish Ministers to prescribe by negative order the offences in respect of which the victim is to have the right to make a statement.

58. Subsection (2) provides that a person who has been (or is alleged to have been) the victim of a prescribed offence, has the right to make a statement (a "victim statement"). The right to make a victim statement arises either after a decision has been made by the procurator fiscal to bring proceedings in respect of the offence or before such a decision has been made if the procurator fiscal so decides. The victim statement should deal with the way and degree to which the offence (or apparent offence) has affected, and may be continuing to affect, that person. Subsection (2) is subject to subsection (6), which makes provision for the procedure to be followed where the victim is under 14, has died or is mentally or physically incapable of making such a statement.

59. Subsection (3) provides that where a person has made a victim statement and the sentence has not yet been passed, that person has the right to make a statement which is supplementary to or amplifies the victim statement. This will permit the victim to provide the court with the most up-to-date information concerning the effect of the offence on them.

60. Subsection (4) provides for the accused to receive a copy of the victim statement or statements from the prosecutor only after a plea of guilt or finding of guilt. If there is a dispute between the Crown and the defence about information contained in the victim statement, the Court may call a proof and hear evidence.

61. Subsection (5) provides that once the offender pleads or is found guilty the prosecutor must place the victim statement and any supplementary victim statement before the court and thereafter the court must have regard to information contained in the victim statement or statements, which is relevant to the offence(s) of which the accused has been convicted in determining sentence on the offender. Where an offender has been found not guilty in relation to some of the charges brought, the Court must disregard information in the victim statement that relates only to the unproven charges. In practice, the court must read the whole victim statement, disregard any information that it considers is not relevant and have regard only to relevant information in determining the sentence to be given to the offender.

62. Subsection (6) makes provision for the circumstances where the victim is either unable to make a statement because the victim has died, is incapable of exercising the right to make a statement because of mental or physical incapacity or is under the age of 14.

63. Where the victim has died, the victim's right to make a statement transfers to that victim's 4 qualifying nearest relatives taken from the list in subsection (10). Where the victim died whilst under 16, in addition to the 4 qualifying nearest relatives the child's carer (this being defined in accordance with the definition of "person who cares for the child" in section 2(28) of the Regulation of Care (Scotland) Act 2001) has the right to make a statement.

64. Where the victim is incapable of giving a statement due to mental or physical incapacity, the right to make a statement transfers to that victim's qualifying nearest relative according to the list in subsection (10). Subsection (7) provides that an inability to communicate which can be addressed by human or mechanical aid can be disregarded.

65. If the victim is a child under 14 years old, the right to make a statement may be exercised by the child's carer as defined in the Regulation of Care (Scotland) Act 2001. The Scottish Ministers have the power under subsection (13) to amend by affirmative order the age at which the victim is to have the right to make a statement.

66. Subsection (8) defines "qualifying person" for the purpose of subsection (6) by reference to subsections (9) and (10) but excluding persons who cannot make a victim statement because they are incapable or a child under the age of 14. Subsection (10) lists certain persons with a family relationship to the victim. This includes those who are not the mother, father or child of the victim, but who enjoyed a parent-child relationship with the victim, as defined under the provisions of the Children (Scotland) Act 1995. Subsection (10) also provides for cohabitees (defined in subsection (11)). The Scottish Ministers have the power under subsection (12) to amend by affirmative order the list of qualifying persons contained in subsection (10). Subsection (9) excludes a person who is on that list from being a "qualifying person" if they are accused or suspected of being the perpetrator of or having been implicated in the offence (or apparent offence) in question.

Section 15: Prohibition of personal conduct of defence in proofs ordered in relation to victim statements in cases of certain sexual offences

67. Subsection (2) amends the Criminal Procedure (Scotland) Act 1995 to prohibit the accused in certain sexual offence cases from personally questioning a victim on the content of their victim statement in any proof on the victim statement called after the accused is found or pleads guilty. The provisions that are being amended were inserted into the 1995 Act by the Sexual Offences (Procedures and Evidence) Act 2002, which made provision to prevent the accused questioning the victim in relation to these offences during the trial.

68. Section 15 also amends the 1995 Act to give the court power to appoint a solicitor for the purposes of his/her defence at any such proof on the victim statement if he/she does not have a solicitor for the reasons specified in section 288D(2)(a) of the 1995 Act.

Section 16: Victim's right to receive information concerning release etc. of offender

69. Section 16 confers rights on victims of certain crimes to receive from the Scottish Ministers certain information regarding their assailant's release into the community, where their assailant has been sentenced to prison for a period of 4 years or more, life imprisonment or detention for life. This includes children under the age of 18 who have been sentenced to be detained without limit of time for murder or on conviction by indictment. Specifically subsection (3) provides that victims should be informed:

• of the date of the offender's release (unless on temporary release);

• of the date of death if the offender dies before release;

• if the offender has been transferred outwith Scotland;

• if the offender has become eligible for temporary release ;

• if the offender has escaped or absconded from custody; and

• if the offender is unlawfully at large.

70. Subsection (1) provides for the circumstances under which information is to be provided to victims of such offences as are prescribed by the Scottish Ministers. The victim must indicate that they wish to receive the information. Where a victim qualifies they have the right to receive information unless the Scottish Ministers decide that exceptional circumstances make disclosure inappropriate.

71. Subsections (5) and (6) replicate for the purposes of section 16, the arrangements included in section 14 to transfer the right of the victim under section 16 to an eligible relative or carer where the victim is dead, under 14 or incapable of exercising the right.

Section 17: Release on licence: right of victim to receive information and make representations

72. Section 17 confers on victims who are eligible to receive information under section 16 the right to receive certain information relevant to the release of the offender.

73. Subsection (1) gives the victim the right to make written representations to the Scottish Ministers concerning release of their assailant. The rights set out in subsection (1) arise where the victim has indicated to the Scottish Ministers a wish under subsection (2) to make such representations. The right does not exist unless the offender has reached the age of 16 by the date on which the case is referred to the Parole Board by the Scottish Ministers (subsection (3)). Subsection (4) provides that the Scottish Ministers will issue guidance on the form of such representations.

74. Subsection (5) provides that when the Scottish Ministers refer a case to the Parole Board for a decision on release they must fix a time within which written representations must be made to the Board for consideration and advise the victim accordingly. The Scottish Ministers will pass on the victim's representations to the Parole Board.

75. Subsection (6) lists certain information that the Board must inform the victim, even if representations have not been made, of their decision provided the victim has under subsection (11) intimated that they wish to receive it. The information listed is whether the Board has recommended or directed release. If the Board has recommended release it must inform the victim whether licence conditions have been set and, if any of them relate to contact with the victim or the victim's family, what those conditions are, together with any additional information which the Board feels it is appropriate to provide.

76. Subsections (7) and (8) deal with the situation where the offender's release on licence is automatic and the Parole Board's role is to make recommendations to the Scottish Ministers on licence conditions. Subsection (7) requires the Scottish Ministers to fix a time within which written representations must be made to the Board for consideration and to advise the victim accordingly.

77. Subsection (8) provides that in a case to which subsection (7) applies, even if representations have not been made, the Board is obliged to inform the victim (provided the victim has indicated under subsection (11) that they wish to receive the information) if it has recommended licence conditions and, if any of them relate to contact with the victim or the victim's family, what those conditions are.

78. Subsections (9) and (10) deal with the circumstances where the offender's case is not considered by the Parole Board and decisions upon licence conditions are taken by the Scottish Ministers. Subsection (9) provides that the Scottish Ministers are required to fix a time within which written representations must be made to them for consideration and to advise the victim accordingly.

79. Subsection (10) provides that, in a case to which subsection (9) applies, whether or not representations have been made (and the victim has indicated under subsection (11) that they wish to receive the information), the Scottish Ministers must inform the victim whether licence conditions have been set and, if any of them relate to contact with the victim or the victim's family, what those conditions are.

80. Subsection (12) specifies that section 17 does not apply:

• if the offender is released on compassionate grounds under the Prisoners and Criminal Proceedings (Scotland) Act 1993; or

• retrospectively, if the Scottish Ministers use the power contained in section 16(4)(a) to change the length of time for which offenders must be sentenced in order for their victims to become eligible to receive information.

Section 18: Disclosure of certain information relating to victims of crime

81. Section 18 enables the police to pass information regarding a victim, with the victim's consent to certain bodies for the purposes of providing the victim with counselling and support. The Scottish Ministers will require to prescribe by statutory instrument the bodies to whom the police may pass information.

82. Subsection (1) provides that a constable may pass certain information to the body or bodies prescribed by the Scottish Ministers. This information may include the person's name, address, telephone number, e-mail address and age, plus any other information which the constable deems appropriate as long as it does not include similar information (such as name and address) relating to the alleged perpetrator. The information provided may indicate that the case is one likely to be disposed of by a children's hearing.

83. Subsection (2)(a) provides that, where the victim of the crime has died, information on any one or more of the qualifying nearest persons as defined in section 14(8) who the constable considers would derive benefit from the counselling or support may be provided to the prescribed bodies again only with the consent of the person concerned.

84. Subsection (2)(b) provides that, where the victim of crime died as a child, information on a person who cared for that victim may be provided, for the purposes of counselling or support, to such bodies prescribed by the Scottish Ministers, again with that person's consent. A "person who cares for" another person is defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 as "someone who, being an individual, provides on a regular basis a substantial amount of care for that person, not having contracted to do so and not doing so for payment or in the course of providing a care service".