 GOOD MORNING, and welcome to the Justice Committee's 7th meeting of 2019. We have no apologies. Agenda item 1 is the start of the new piece of work for the committee. This will be an initial look at the issue surrounding the prosecution of elderly abuse in Scotland, where our work follows on from the independent review of hate crime legislation in Scotland by It's my pleasure to welcome to today's committee two panels of witnesses, the first panel starting with Leslie Calcarey, director of action on elder abuse Scotland, Adam Stracura, head of policy and communications, age Scotland and Gordon Paterson, chief inspector, adult services with the care inspectorate. I thank the witnesses for the written evidence that you have supplied to the committee, which was immensely helpful. The detail that you have gone into will certainly help our scrutiny of this today. I refer members to paper one, which is a note by the clerk, and paper two, which is a private paper. We now move to questions from members starting with John Finnie. Good morning, panel, and thank you for your statements. Mr Paterson, I would like to comment on something that you qualify comments by saying that we would ordinarily be wary of an arbitrary approach based on age that would have the effect of perpetrating a perception of older people as members of a demographic distinctly lacking the ability to protect themselves from harm or abuse. I think that's an important statement, but can the panel outline what's the extent and nature of elder abuse, please? Leslie Calcarey from action on elder abuse. According to our research and recent prevalence studies, we estimate that around 9 per cent of over 65s in Scotland have experienced some form of elder abuse, which may include physical, sexual, financial, psychological or neglect. We would say that 9 per cent is very likely to only be the tip of iceberg, because, from our experience—and I'm sure others will corroborate this—many older people are very reluctant to speak up, so we believe that the extent of elder abuse is much higher than that. Some studies from the World Health Organization put the figure nearer 16 per cent of older people could be subject to elder abuse. When you put in the Scottish context about 1.65 million people over the age of 65 in Scotland, and even at the lower end of this, nearer 10 per cent, that's a huge number of people who could be subjected to quite frankly terrifying abuse. There is a lot of people that affects, but from the lower end you can see that the best part of 150,000 people in Scotland could affect upwards of 200,000 people, so I think that it's really important that action is taken. Before coming to Mr Paterson, are you able to see how that group of people is dispersed across Scotland? Are they concentrated in any particular, not necessarily geographic area but sector? It's very difficult to tell. The best statistics that we can get in Scotland are based on adult support and protection statistics, which are collected in each local authority area on a biennial basis. Unfortunately, due to differing ways in which those statistics are collected, it's very difficult to get a national picture. From our own experience, we run a national helpline. We're inevitably finding that we get more calls from more urban areas, but I don't think that that's an indication of there being more elder abuse in urban areas. We tend to find that sometimes remote areas are less well-served in terms of other support services and access to information, so it's sometimes difficult to let remote areas know that support is available and they're perhaps less likely to speak up. Mr Paterson, do you have a comment on that? I think that I would be deferent to my colleagues in relation to their more specialist knowledge around the prevalence of elder abuse. For us, part of the challenge is always around definitions here, where we're registering and inspecting 13,500 care services across Scotland, including for example 832 care homes for older people. We're forever debating and wrestling with the challenge around when does poor care become neglect, when does neglect become harmful, when does that harmfulness constitute criminality and how effective prosecutions are pursued in terms of the public interest and the reliability of witnesses and being able to prove beyond reasonable doubt. I think that it's very difficult to put a figure on the prevalence and I think that it's also difficult to deduce from that whether or not there are particular challenges in particular parts of the country. I think that people in rural and remote areas are no less vulnerable than people in urban areas, but we wouldn't purport to have robust statistics on the prevalence. Would any of the panel be able to say more likely to be subjected to abuse if you're in an institution rather than in your house or is there anything that would support that? I'd evidence suggest that you're much more likely to be harmed or abused in your own home compared to care settings. We find that the majority of abuse takes place by family members, which is a fairly even split between partners and spouses as well as grown up children and other relatives. We do hear of cases of carers or other health professionals being the perpetrators, but in the vast majority of cases it's family members, someone who's very well known to the older person in their own home, unfortunately. I'd just add to that if you consider the length of time that somebody might be living in their own home compared to a care home. You know, those people are not subject to necessarily one instance of some kind of abuse, but it may be something of a prolonged period of time from a family member, a close friend or a paid-for care worker in their own home. I can concur with Leslie on where the balance may be, but it's obvious that for a lot of people elder abuse will happen over a long period of time and not just that one one-off occasion. We also find out one of the biggest concerns that we're dealing with is the problem of loneliness and social isolation amongst older people, which is one of the biggest factors why older people choose not to report armour abuse. We've heard of cases of older people choosing to put up with abuse rather than risk their grown-up son not coming to visit. We've heard of grown-up children bribing older parents to say, if you tell anyone, you're not going to see your grandchildren. For a lot of older people, the fear of loneliness is greater than the fear of abuse, so they're choosing to put up with it rather than tell anyone, unfortunately. You may also have seen in our written submission that we've also heard evidence of some older people handing back free call blockers, which are intended to block nuisance calls, and they told us that the reason they were handing them back was that they were so lonely that they would rather speak to scammers than be on their own. We would class scams and doorstep crime as a form of abuse as well, so I think that that really gives you an indication of some of the reasons why so few people speak up about it, unfortunately. Some of our colleagues are going into the criminal aspects and issues around offences and that. You've covered it, Mr Patterson, with the escalation of what factors you'd consider before something would constitute a criminal matter. The other two panel members, is it your view that all aspects of elder abuse should be considered as criminal? Not always, although one of the problems that we find is that one of the main differences between the way that elder abuse and domestic abuse is treated is that, when it comes to domestic abuse, it appears to be a very empowering approach. It's all about empowering the women to take decisions and take actions to keep herself safe, to get out of that situation and to seek justice through the criminal justice system. Unfortunately, when it comes to older people, the prevailing view seems to be quite a paternalistic view of a poor older person who needs our help, needs our support, so we tend to find that cases of elder abuse are primarily social work rather than prosecuted. We tend to keep an eye on media stories regarding abuse in care homes, for example. Abuse in private homes aren't as well publicised. We tend to find that quite often the result is that the carer has perhaps struck off the register or disciplined or sacked. We always write to the media and say, why was a criminal charge not considered here. We tend to find that if, as a younger person or a child, criminal charges will be considered in the first instance, when it comes to an older person, sadly the first response tends to be adult support and protection, which we agree is good, but we can't forget about the criminal aspects as well. If we don't, older people will not speak up, and the problem of elder abuse will continue because there is no effective deterrent. I'll back up a lot of what Lizzie says there, particularly with adult support and protection. It's unique in the United Kingdom the way that Scotland approaches this, but when you look at the criminality part of this is to think back in the result of the actions upon the older person and how it impacts their life. Psychological can be physical, financial abuse as well, so it might not just be that one act, but going back to the point of a prolonged period of time, it could have a significant impact on this person's life, and that's where the criminality would come into judgement of prosecutors. I wouldn't want to undervalue the contribution that adult support and protection has made in Scotland over the last 10 years. I think that it's important to recognise that our experience distinct from colleagues is that adult protection is not just about social working, whatever that is. It's about a multi-agency response that gives due consideration to how protective measures should be brought by all parties involved, by social work, by housing, by health, by police. The active involvement of Police Scotland in the police concern hubs is an effective means of those who have a responsibility for investigating and reporting crime, i.e. Police Scotland, for doing so in relation to any number of adult protection concerns that are considered day in, day out across Scotland. I think that prosecutions fall from adult protection. What I'm not sure about is whether an additional offence is necessary to address the lack of some of those prosecutions being successful, but that might be a matter for the second stage of this panel to consider. If we could look just a little bit at the extent of it and only 9 per cent being under-reporting of it, could you perhaps explain, Mr Paterson, how you record those incidents? You said that there are various types of incidents. How does the care inspector actually record them? In relation to our strategic scrutiny of the work of social work in health and social care partnerships, jointly with other regulators, it wouldn't be for us to record. We would be going out to inspect how social work departments in health and social care partnerships are effectively discharging their duties in relation to adult support protection in the same way as we do for self-directed support or integration now. How is that written up then? It's written up by the adult protection co-ordinators and the staff employed within the local authority, or more likely now within the local authority, but working within the health and social care partnership, and it's reported, as Leslie has alluded to, in the adult protection conveners by annual report that is submitted to the Scottish Government for their consideration across the country. Is there anywhere that the age of the person is recorded? Would the care inspector record that and have a note of the type of abuse or incident that has been recorded? There would be information recorded in the biennial reports that would be pulled together nationally. There is now, again, a national strategic adult protection forum that is actually meeting next week that is convened by Clare Hawley, the Minister for Mental Health. In relation to registered care services, we would probably have more information in relation to the prevalence of abuse and harm. We require registered care services to notify us of any incidents that fall into that category. We record them and we monitor how they are affected and what action is taken in response. We would know that there are a number of referrals that would come to us in relation to elder abuse, specifically, I suppose, from care services that are supporting older people, where there are allegations of harm. Again, those would be referred to the local adult protection team in the health and social care partnership for them to investigate. We would oversee how that progresses and we might take enforcement action in relation to that care service if it was necessary. Do you think that it would help if it was flagged up the age of the person and that this could potentially be a case of elder abuse, something quite distinct? If you revised how you reported and made sure that the age of the person was recorded, that would be a starter for 10. That would be a starter for 10 in recording the age of people who were the subject of allegations of harm. Not all those allegations are substantiated, but I would be less concerned about their age and more concerned about their vulnerability. Very often, we are dealing with people who happen to be under the age of 65 who are the subject of abuse, and I think that that potentially becomes one of the most significant challenges for this committee. If you do not record the age, you cannot tease out the instances when people are targeted because they are seen as an easy target from their age. You are making the assumption that it is just vulnerability and we will put them under one particular heading. Is that not missing an opportunity to tease out this particular issue? I think that if you subscribe to the view that something happens on your 65th birthday that makes you an older person and by virtue of that, there is a need to classify you differently, to treat you differently, to view you differently, then that might be the case. As Lord Bracadale said, the question about improving age hostility is quite significant. I know that others have questions, but I will move to Jenny on the barriers and then bring in the supplementaries from that, because I am feeling that the supplementaries may cover that. Thank you, convener. Good morning to the panel. In terms of those barriers to reporting, Lizzie Kirkry, in your submission, you talk about a reluctance to report. You mentioned that previously this morning, an unfair perception or maybe a stereotype that older people make less credible witnesses. In social work Scotland's submission, they say that we also have to understand that many victims of harm may not wish their relatives to be prosecuted. Does the panel acknowledge the tension between victims not wanting to go forward by prosecution if it is a family member? Definitely. That is an issue that we come across quite regularly. We have a national helpline where we, on a daily basis, speak to either older people or family members who have been affected by elder abuse. I would point out that the vast majority of people who call our helpline are actually family members. We have a very small proportion of older people themselves called a helpline. Without speaking to them directly, it is difficult to know why, but I think that we can safely assume that it is because they find it difficult to report loved ones. Our definition of elder abuse makes a clear distinction between situations where there is an abuse of an expectation of trust and opportunistic crime. Our definition focuses on situations where there is an expectation of trust that has been broken, which is why we are specifically dealing with family members, friends, carers and health professionals. For example, we would not include things such as doorstep crime, bogus tradesmen, scams and things like that. For the type of crime that we are dealing with, it is very difficult for older people to speak up. I mentioned earlier that family members are most likely to be the perpetrators. The latest prevalence study, I think that 66 per cent of perpetrators were family, which was broken down into a fairly even split between partners and spouses and other family members. I have experienced that it tends to be grown-up sons followed by grown-up daughters that are the most common perpetrators after partners or spouses. Sometimes older people themselves will call and discuss concerns with their grown-up children or sometimes with other family members. I occasionally take helpline calls and some of the people that I have spoken to have told us that they are in a bit of a quandary. They are so embarrassed and feel so guilty that their own children could do this to them, but at the same time it is still their children and they do not want to report them. We find that financial crime is the most commonly reported type of abuse to us. It is fairly consistent across various local authority areas. We quite often hear of abuse of trust around things such as power of attorney, where we tend to find that there are two types of people who are abusing power of attorney. The first is the people who know that it is wrong and they know that they are using it as a means to steal from an older relative. Secondly, there are people who do not realise that they are misusing it. I think that there are a lot of misconceptions around what power of attorney is and what it can and cannot be used for. I think that some people, if they become a power of attorney for financial powers, believe that that gives them the power to spend that money however they would like. We sometimes have callers to our helpline who will use the term such as, but it is my mum. She would want me to have this money. She would want me to spend it on such and such. She would not mind. It would be coming to me anyway. We will say that this is not your money. Have you asked your mum? Have you asked your dad? Do they want it to be spent in this way? A lot of people genuinely do not realise that they are doing the wrong thing. For the people that it is happening to, it is very difficult to report that. We have heard of older people who are struggling financially and they are going into debt because they do not want to stop giving money to their children. It is a very difficult issue and we can give them all the support and encouragement that we want. However, if they do not want to report it, there is nothing that we can do about it. That person is right not to report it. That is why we need to be a bit more creative about how we encourage them to seek support elsewhere. I mentioned earlier that a lot of older people are very lonely, so they might think that if I do not give my son that money, he is not going to visit. I am not going to see the grandchildren, he is not going to drive me out and about. They choose to put up with it, which is why we need to start thinking about what other support can we sign post that older person to so that they are not completely reliant on the abuser to meet their social needs or perhaps their care needs. We need to think of it from those points of view. It is not always about criminalisation, but at the same time we feel a lot more needs to be done to criminalise this type of behaviour so that there is a real deterrent and so that children or other family members who are thinking of doing this will think twice about it if they say that there is a proper deterrent. I would just say that, if you consider the relationships, the dynamic of the relationships, they are very interdependent with the rest of their family and as Leslie rightly said, most of the perpetrators of this are close family members. For a lot of people, especially older people, they are going to have to think about what support is available to them once they report something as well. They are not on their own because of the issue of loneliness and isolation. At the worst extreme, there is one person on every street in Scotland who feels lonely, an older person in Scotland feels lonely all and most of the time. For a lot of older people to understand how they get access to the right kind of information is important too. Half a million Scots over the age of 65 do not have access to or use the internet. For most of the kind of information about what is wrong, what you need to do about this just is not at their fingertips. Leslie Charity has a national helpline. We speak to people and their families too about instances of abuse. The first question that they will come up with is, what do I do about this? Where do I go next? For a lot of people it is not just about that report, it is about what happens if I report this and I am ostracised by my family or something happens there. Where do I go? What supports in place for me? If you look across the piece, that becomes a big question in the future for a lot of those types of very serious crimes, how do we support older people who are reporting them as best we possibly can? In terms of prosecution, we have seen evidence from Police Scotland and Age Scotland about specialist support for victims of elder abuse, and they both agree on that. Leslie Charity was quite taken by your submission, because you point to the specialist staff and you give an American example of units within police and prosecution services. In terms of the barriers at prosecution level, what do they look like currently and what more could be done potentially in terms of prosecution? I pointed to an example in my submission about the case of Lynn Harrison, whose elderly aunt had experienced quite severe financial abuse, where £44,000 had been stolen at the hands of her carer. Although that was a terrible example, we found that it was a good example of highlighting some of the problems with the system. I included a quote where she talked about consistently having to badger the police for the case to be taken seriously. Unfortunately, not everyone has someone like that, has a persistent person who is willing to do that badgering, and when they get told that they are not going to investigate it, they will often not push it any further. The more that that happens, the more older people think, well, such and such reported it to the police and nothing happened, so they are less likely to report it. We also came across a case a few years ago where an older lady had dementia and lived in her own home. She had a carer who would come in twice a day to meet her personal care needs. Her grown-up son believed that the carer was directly stealing from her purse. He was so adamant that the carer was stealing but did not have any evidence to instigate either criminal proceedings or an adult support and protection investigation. He was so adamant that something was happening that he took the drastic step of installing cameras in his mum's home. Lo and behold, he found evidence to show that the carer was stealing and it eventually got taken to court. We feel that it should not have to come to such extreme circumstances for cases like those to be taken seriously. He found that, because his mum had dementia, any time he reported it to anyone, people would just say, but she's got dementia, she's getting a bit muddled, she's making it up. Now, sometimes that does happen. We do appreciate that, but it doesn't mean that those cases should automatically be dismissed and put down to confusion or memory problems. All cases need to be investigated on their own merits. Gordon Parsson, you mentioned earlier on that we're wrestling with definitions and at some point this committee will need to seize hold of defined terms. Leslie Carkery, in your submission, you talk about older people or the definition will be older people. We've got a paper that talks about elderly abuse to people of 60 or over. The question that I put to you is, what is elder, what is an older person or what do you think it should be? That is the issue that I think I have the most difficulty with. I think that the care inspectorate would, in so far as we have consistently sought to promote the notion that people of age should not be defined by what they lack, that we should not have a deficit-based approach, that people, as the age, continue to be people who can contribute, who have hopes, ambitions, experiences, wishes. I think that the challenge, therefore, then, is that there are some people who are 64 or who are as vulnerable as people who are 84 and that nothing magical happens on that birthday. For me, the challenge is, how do we define something that allows a definition to either pick up on age hostility, and that may be at any age, because younger people with dementia or learning disability, albeit that they may already have a protective characteristic under the Equalities Act, which is where this is at odds. How do we ensure that there is sufficient protection there? There are significant variations between people who are 65 and 85 and 105. What we are working with is probably quite an outdated age cut-off, which is a reflection that 50 years ago 65 was quite elderly. Now 75 is not at all elderly, so I think that there are real challenges around this. I think that the questions are not about chronological age but the fact that people at times in their lives have degrees of vulnerability, frailty, infirmity, and that is what can be prayed on by people who are choosing to target them. It is a very good question. At age Scotland, we think about all the time, as a national charity for older people, that the first age that we are looking at is people who are 50. It is not just by virtue of your vulnerable or anything like that. It is entirely because we know that in the workplace that is when age discrimination kicks in, but throughout the age spectrum there will be different priorities in terms of age. If you are looking at elder abuse and the actions behind it being family members, caregivers or close friends who are taking advantage of somebody who may be vulnerable and unable to report things, you might have assets, for instance. Part of the real question is looking at their capacity as well. It is a very difficult one to think about. Having an arbitrary date, if you can consider the point about who the majority of the perpetrators are being close family members who are grown-up adults doing this, then there comes a point where you might be looking at someone from your mid 50s to 60s to 65s. It could be quite fluid. I will read you our definition of elder abuse, which we produced about 20 years ago and has subsequently been adopted by the World Health Organization and is used internationally. Our definition of elder abuse is a single or repeated act or lack of appropriate action occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person. You will notice the last two words. We have older person there and we do not have a definition of what that means. We have the same tensions around putting a number on it. We posted something on Facebook a few weeks ago and I think we deliberately said, please complete this survey if you are aged 55 or over. A few people got back up and were quite offended that we would class a 56-year-old as an older person. For us, the number should not matter. In terms of prosecutions, we believe that older people as a group are deliberately targeted because quite often, rightly or wrongly, they are perceived as being more vulnerable by some people. For us, that takes away some of the confusion in terms of trying to determine whether a victim was deliberately targeted. It should not matter whether we have a definition of that person being vulnerable. The fact is, quite often, older people as a group are perceived to be vulnerable. We will use examples of an older person who might be frail and blind. They might not think of themselves as vulnerable and perhaps they are not, but the fact is that the person who perpetrated that crime was very likely that they chose them because they perceived them to be vulnerable, whether they are or not. I think that is the important point to make here. Members of the committee will come back on that exact point later on, but I find Gordon Paterson's point very persuasive on this. Unless you draw a category, it is going to be very difficult to say who is within that protected category. Therefore, the follow-up question would be, do you take a view on the idea that what we should be protecting here is age as a general characteristic, like we have done in employment legislation, for example, and say that you should not discriminate based on age? Rather than trying to take an arbitrary line and say that it is 64 years and 364 days, you are not within that category, but on your 65th birthday you are. Would that be a better approach? I agree. I have always had a bit of attention that, unfortunately, the name of our organisation includes the term elder abuse, and we have all come to accept over the last few years that it is not a term that is very commonly used. We tend to work very much within the adult support and protection framework, where the term abuse is very rarely used, either as the term elder. We talk about harm or abuse or exploitation of an older person. Again, there is no definition of what an older person is there, but for us it is the vulnerability and perhaps the frailty that is the issue. It might be quite useful for the committee to consider the definition used in the Adult Support and Protection Act. They do not use the term vulnerability, but it is clearly intended to describe vulnerable people. I would point out that that covers any person over the age of 16, but perhaps that could be a route to consider, because it will also consider perhaps young adults with learning disabilities. I do think that, in terms of consistency, that would be a useful crossover. If you consider Lord Bracadale's review of hate crime looking at a stash of aggravation on age in general, that is a separate thing to what elder abuse is, but that is also a very welcome move in terms of that stash of aggravation, looking for the top-up after an offence has been caused. As it is notwithstanding the fact that we know that there are a huge number of older people aged, sometimes somewhat fluid, who are subject to these types of crimes, or a prolonged period of time. Again, as Gorn rightly said, you could be 75 and still be fit as a fiddle, or not seen as old or elderly, which is a terrible phrase to use. It is certainly something that we will have to reflect upon if that can cut off point, but I think that the Bracadale review looking at age as a general thing should protect the characters is a good place to start, but I am very much looking back at the impact that these crimes have on older people in general and someone to really pivot around. I would add in relation to adult support and protection that the three-point test that applies in consideration of whether or not an intervention is warranted in relation to adult support and protection is that a person is unable to safeguard their welfare property rights and interests, that they are at risk of harm, and that they are more vulnerable. The word vulnerable is in there because of age, infirmity and disability. Sorry, not age. I think that that is the point that Leslie is making. Because they are affected by disability, mental disorder, illness or physical or mental infirmity, they are more vulnerable to being harmed than adults who are not so affected. The addition of the word age may not make much difference there because it is not age in its own. It is the vulnerabilities that can sometimes be associated with age that are probably already covered by the word disability, mental disorder, illness, physical, mental infirmity. I think that the adult protection legislation is robust and I think that it does allow that multi-agency response to situations where someone by virtue of their age has a degree of vulnerability associated with frailty or social isolation and interventions can follow. I think that what is important in relation to adult support and protection is the need to reinvigorate the agenda around support and not just the protection elements because that is where we begin to address social isolation, that is where we begin to tackle issues around power of attorney being misused and that is where we have dialogues with people about capacity and consent and their confidence in being reliable witnesses and making complaints. My question relates to a line of questioning from the convener to Gordon Paterson about reporting and definitions of abuse. You said earlier on when does neglect become harmful. Can you maybe explain that? I would have thought by definition that neglect was harmful. I think that the challenge is around the application of that three-point test in adult protection but the situations that we often encounter. For example, I was interested in the submission from Protect that talked about whistleblowing, care services and it talked in great detail about some of the challenges that care staff have in raising concerns about situations of harm or abuse or neglect of poor care. I researched it further and I was able to identify from the sources that they produced that their work is predominantly in England in care services. They talked about the healthcare commission, which is the regulator that preceded care quality commission in England. They talked about the percentage of care workers who are whistleblowers relative to those recorded in the census in England in Wales. The situation that they are describing is quite different to what we encounter in Scotland. As the care inspectorate we, unlike most other regulators, have a statutory responsibility for receiving complaints. In each of the last three years we have received over 4,500 complaints about care services and in the most recent years about 45 per cent of those have related to care homes for older people. Now, whether it is a complaint or whether it is an adult protection referral, the response should be robust and the investigation should be thorough. What we encounter, though, are situations where it is difficult to substantiate what has occurred or there are situations where reports are made to us where peer-on-peer incidents have occurred and there are high numbers of those where someone with dementia has maybe lashed out at somebody else or there has been sexually disinhibited or whatever. That takes us into the territory of what is the most effective response in each of those circumstances. It is not always about, you know, we are going to involve the police, it is not always about a full investigation, some of it is about managing distress and stressful behaviour, some of it is about us as a regulator intervening. We had a couple of situations last year where, as a result of whistleblowing for our complaints procedure encourages staff to blow the whistle and to do so anonymously or confidentially, we closed five care homes in Scotland last year as a result of poor care. That is unprecedented in our history. Two of those situations, the intelligence that we gathered in relation to what action was necessary, was informed by staff who were whistleblowing. What we have is lots of examples of where we have engaged with Police Scotland in those situations and prosecutions have followed. We would always refer to the Mental Welfare Commission, to the Social Services Council and to the Nursing and Midwifery Council. We are currently engaged with Police Scotland in relation to some cases that I need to be sensitive about. It is about discussing because there is subjudice but they are for the first time pursuing possible prosecutions under the Health, Tobacco, Nicotine and Care Scotland Act, a new piece of legislation that allows the courts to consider taking action in relation to ill treatment or willful neglect by a member of care staff or by a care provider. There is a lot going on in this area. In relation to that legislation, we need to recognise how recent it is. We need to recognise that those are probably the first cases that are coming through. It may well be that increasingly it is used as a way of tackling some of the challenges that arise in care services. A quick follow-up to that. If you received several complaints or whistleblowing about a particular care place that is about neglect, you would look into that and take action. We might not wait for several. We would put that together with other intelligence. When did we last inspect? What did we find when we last inspect? Had there been notifications from that service about incidents, accidents, a change of manager, which can be a critical point in a care homes journey? We would take action, we would bring forward an inspection, we would carry out an investigation or we would make a referral to the local health and social care partnership and they would initiate adult protection measures. We may at that point also make referral to the Scottish Social Services Council or to the nursing and midwifery council who can take interim suspension orders pending investigations but we would also make demands on the provider that they were managing their service effectively and that they were taking robust action either in terms of disciplinary action or in terms of an internal investigation. I just wanted to pick up where we got to earlier when Gordon Paterson talked about the definition within the adult support and protection legislation, which I think is probably getting to the heart of what we're talking about here rather than it being vulnerability based on someone's chronological age, which I think the rest of the panel have said would be very hard to do. It's about the vulnerability based on whatever, whether it's age or someone with a learning disability that is therefore the factor of becoming a target from whoever. I guess I just wanted to ask, do you think that there is a gap or an opportunity to build on what is within the adult support and protection legislation around a potential statutory aggravation that's not specific to older victims? I guess it would send out a message that this is a very serious crime and is judged as such and therefore would be regarded by the courts as something perhaps more serious than it's perhaps in society being viewed as at the moment. Is that something that you would have sympathy with or do you think that there's no gap at the moment that needs to be addressed? I think that that would be important. I think that that would be significant in terms of raising awareness and I think that that would send out a strong message. Whether or not that would either deter people from committing those offences or increase the likelihood of people coming forward and reporting those offences and therefore then in a prosecution being infected, I'm not sure about. I think the issue is about how can we ensure that people are not social isolated, how are people given supports to enable them to have advocacy, to have whatever other supports are necessary, to enable them to be confident in reporting and progressing concerns that they might have about, as we've heard, often familial abuse, and how will people be reassured that doing so won't result in reprisal or in losing whatever it is of value that that family connection brings to them? For me, the question would be about how much more effectively can we emphasise the support element of adult support and protection? If that was about some sort of awareness-raising campaign, some public campaign, any number of measures could be taken to heighten awareness about this difficult issue. That might, in itself, be able to be addressed within the existing definitions with an adult support and protection, that heightened awareness rather than necessarily any revision to how the three-point test has worked out. I guess that there are quite a lot of parallels with domestic abuse legislation and recognition that society has a duty to send out a very clear message to perpetrators and potential perpetrators. Because someone's vulnerable, it shouldn't really make them be treated any differently in the eyes of the law in terms of their rights to be protected and redressed. I guess that it's about getting that balance. I hear what you're saying about the complexities of family relationships, but some of those arguments were potentially used previously in domestic abuse situations. Those things are complex and it's about supporting the victim. It is, but it's also about the law being very clear that this is a crime and whatever the complexities going on within the household potentially, which is a thing where there is an issue that needs to be addressed. Would that not send a message that this will be treated seriously? Because of someone's vulnerability, they're not going to be less protected in the eyes of the law? I mean, I think I'll defer to my colleagues probably to have their opportunity to respond. I agree with what you're saying insofar as that heightened awareness and that added protection would align itself to the kinds of approaches that have led to the domestic abuse legislation. But maybe the challenge there is to give that time to play out and see how that develops. I know there have been a lot of debates around whether age should be singled out as a specific category and perhaps considerations around is quite an ageist approach and we shouldn't be treating older people as a separate group in case it marginalises them. I would totally disagree with that. I believe that if we can treat domestic abuse as a very unique issue with its own prosecution system and its own dynamic, its own processes, we also have specific protections for victims of hate crime, very specific and very comprehensive protection for children, then why on earth can we not see the protection of older people as a distinct issue as well? I think that you said earlier that it would be very difficult to define what that age is. It's actually about the vulnerability of the person rather than their chronological age. I guess the point that I was trying to get to was, are we really talking about here whether or not there should be a statutory aggravator as one way forward potentially that's about the vulnerability of the person rather than their chronological age? I think that there's possibilities for both. Forgive me, I'm not a legal expert and I made a suggestion in my written submission. I don't know if that's legally possible, but I would quite like the idea of perhaps having both systems where there could be the statutory aggravation on the basis of vulnerability, which takes into account any age group and its focus on vulnerability, but also a specific stand-alone offence of elder abuse for quite different cases. For us, the specific offence would be our preference, possibly both at the same time. If that wasn't deemed workable, we would very much support a statutory aggravation on the basis of vulnerability and I think that it totally makes sense for that to be available for all age groups. Your point about using the definition of vulnerability under the Adult Support and Protection Act is something that we would very much support because it works very well. The only thing that I would point out is that there is already a problem, as I said right at the start, around older people's, the harm and abuse of older people being treated in a paternalistic way. Although Adult Support and Protection Act is very good in supporting, protecting and safeguarding older people, it's not part of the criminal justice system and there is a danger that it could lead to the problem that we're already seeing where people don't consider the criminal aspects and they're just focusing on the safeguarding side. We would also point out that although the domestic abuse framework in terms of prosecutions works very well, the committee will be aware that that only applies to partners and ex-partners. We've always been quite concerned that that doesn't take account of situations where it's grown up children or other family members who are the perpetrators. We had a lady called our helpline a few months ago who was being physically and financially abused by her grown-up son. According to the definition of the three-point test under Adult Support and Protection Act, she wasn't vulnerable enough for support under that framework because she wasn't frail and didn't have mental capacity issues, but she also wasn't able to access support through domestic abuse because it wasn't her partner or her spouse that was doing it to her. So there is a bit of a loophole for people like that. Which route do they go down and how do they seek justice? That's helpful. We've moved on. Sorry, did you have something down to do? Very briefly, I just think your point and your question is very good. I think that the Brachydale review suggests an aggravation on vulnerability anyway, I think, and I think that the Scottish Government just closed their consultation on that. I'm just thinking back to some of the previous Lord Advocate said that legislation can affect behaviour and I think that's a really compelling argument for lots of different things, but actually this kind of legislation in whatever way it's enhanced could be a real statement of intent that this kind of these kinds of offences and crimes are absolutely not on. It could be something that's a little bit unique to Scotland by taking that approach but also has three elements which are quite critical in terms of people coming forward and feeling that they are protected and supported, and not least as they have the confidence that they're going to be taken seriously. We've discussed briefly the barriers that they may have, that they know their support available to them as part of this, that gives prosecutors further tools, legal tools at their disposal where they think there might be something lacking and that'll be something for them maybe in a later session, but finally acts as a preventative measure as well by enhancing the kind of severity of the crime for those people who are complicit in it that they will actually maybe think twice about doing so. And if you've drawn the parallels with domestic abuse legislation, which rightly was not watered down with anything else, it was right who it is, that you can consider just the enhanced publicity of it. You see adverts everywhere about, this is not on, this is what you need to go and do, this is what will happen to you if you commit these offences, and actually you could probably, hopefully we'll see in the future, people more reporting, more prosecution and kind of at the lesser extent of the crime, so that could be applicable in the same circumstance. Ganyw in this is his line of questioning now so far. No, I mean it's fine and it's useful to explore things. I mean I think actually when we're talking about what changes in the law are needed, I think actually looking at Bracadale explicitly and I think it's been touched on a number of times, but I'd just like to really ask kind of the panel what their reaction is to it and if I'm just to pull out my reading of what Bracadale recommended. One was that we should consolidate the law around hate crime. One was that there should be a baseline offence and that then the aggravators are used to then protect characteristics. So I was just wondering if the panel could state kind of what their thoughts on that model is. And I think then the second and connected point is that to what extent that is sufficient, you know, whether or not actually the things that we're talking about really are covered by what we might consider hate crime or whether or not there are other elements of this that we need to be covered off. Also, just in your answers, I think other colleagues want to ask specifically about the merits of creating a stand-alone statutory offence, but if we could just focus on that Bracadale aggravator model and then other colleagues will ask about statutory offences. Our preference would be, again, if this is legally possible, for perhaps three different models to be working in tandem. We know that hostility on the basis of age happens, but it is very much a minority. So we hear of cases of antisocial behaviour or negative attitudes towards older people because of their age and it's things like resentment because people think they're claiming more benefits or state support. We don't hear that very much, but I think for the people who do experience it, we would support any proposals for an age-related hate crime. Secondly, we believe that a statutory aggravation on the basis of victims being targeted because of their perceived vulnerability could work on top of that. As I said earlier, if there is a possibility for a specific stand-alone offence for elder abuse for the more complicated cases and cases that are clearly involving an older person and all the complicated dynamics that go alongside elder abuse, then we would support that also. On that point, Lord Bracadale explicitly said that, in a sense, that's a difficult thing to do because of the issues that have been outlined already and that, in his view, a more broadly stated age aggravator would be more workable and more useful. I'm just wondering what your response is to that. Any age-related hostility could be on the basis of any age that could be resentment towards a younger person, for example, so I think that that approach makes sense. I'm less aware of hostility towards younger adults, obviously, of our experiences, older adults, but from that point of view it would definitely make sense for age in its widest category to be the aggravator rather than specifically pinpointing old age. I think that the Bracadale review was quite neat in that it looked at how it works across Scotland's criminal justice system, and some of those aggravators and aggravations are a step up from where we are just now. I think that it's very supportive of an aggravation, the basis of age, and you could see that as something that would work in tandem with fraud and scamming, for instance, whereby, if it was at an older age, the perceived vulnerability—say, a scammer has gone after 10 people who are all in their 70s—well, it's not just fraud, then there's a pattern there. Obviously, at the same point, the hate crime part could be the case when you've seen examples of this where older people were blamed for the vote to leave the EU, and bricks are thrown through older people's windows. Well, that's entirely a hate crime based on age. It's not necessarily just criminal damage with an aggravator—that's a further extreme. I think that on the elder abuse thing, so I'd like to roll back on that. I think that they are kind of separate. We're actually looking at the types of crimes that are committed, sometimes over a prolonged period of time that don't necessarily fit neatly into that, it's just an aggravation. It's just theft and aggravation and crime. They're actually part of this prolonged financial, physical, psychological abuse that has parallels with domestic abuse, but I do think that in terms of the Brachydale review general, it was well considered at how it fits into the Scottish criminal justice system. That model of having baseline offences and an aggravator on top, whether it's hate crime or, indeed, other common law offences, but when the context of an older person, the aggravator then being the means of attaching that perspective or importance to that crime, is that roughly what you're saying that we should take away from Brachydale? Sure. I think that part of this goes back to that point about—sorry, it really kind of fits into—that's a sentencing part, isn't it, where it comes to the aggravation, whereas having prosecutors thinking about or crimes being reported is a different kind of kettle. So really thinking about the kind of aggravator is really helpful for when sentencing is brought, is it not, as opposed to just that, a crime is done? I mean, I think that an argument could be made that it would also, in terms of prosecutors and, indeed, people investigating crimes, for the similar reasons that you just talked about in terms of communication, that aggravators can serve that function as well. Mr Paterson, are you just wondering if you had any thoughts about that, the Brachydale model and its usefulness, either with a particular around hate crime or more broadly to the issues that we're talking about? I mean, I think that I would first acknowledge a lack of legal expertise in relation to these matters, but I was attracted to the phrase that was in the submission, I think, from Police Scotland or the Law Society, where Lord Brachydale said, Age is a category is wider than just including elder, as this would cover all ages from youth to elderly. I think that it is potentially the case that younger people could be targeted, could be vulnerable, could be exploited. I'm thinking of hearing about county lines and what we're hearing about how young people are being exploited. Sometimes young people who have had adverse childhood events, children who, young adults, have been through the care system and may have mental health or substance misuse challenges. So, I think that any aggravator should probably not be linked to an arbitrary age of 60 or 65 but may add value if it was about any age where people have a degree of vulnerability and experience hostility as a result of that. I just asked one final question before handing over to colleagues. I mean, I think that one of the interesting points that's been raised so far is around power of attorney and it strikes me that that's an area which actually needs some specific focus and perhaps specific changes because of particular things. And that would be, I think, stands alone from the point of statutory aggravation. Another point which has been raised with me is around, or has come to my attention, is around probate and when somebody is nominated as an executor and they're actually implicated in the abuse or indeed actually the death of the individual. It strikes me that these are two examples of whether you believe in the merits of a statutory offence or aggravators. Actually, these stand alone as areas of law which require focus and attention to deal with these issues of stand alone items. I'm just wondering if there are any other areas of the law such as those that you think might require review to deal with some of the particular issues that have arisen in recent times around the wider issue of elder abuse. I would certainly agree power of attorney and I would probably extend that to a lot of situations where there's a family tension because I think that the dynamics of those types of harmful behaviour or abuses is much different compared to things like doorstep crime and scams. That is an area that I think does merit a unique set of circumstances. Firstly, because it's difficult for the older person to speak up about it and secondly, because the family dynamics and the associated tension that can cause make it quite a unique issue. I know that in the discussions for the Domestic Abuse Bill it was recognised that there are certain types of behaviour and also long-term patterns of abuse that weren't easily prosecuted and I would say that actually the case is very similar in elder abuse and that there are types of behaviours that I think would be more easily prosecuted and more easily identified as a separate offence. I would like to think about the extra offences, but your point about power of attorney and maybe even guardianships might be addressed with Addison Capacity Act, if you will, that might kind of settle that down, but there are big problems there anyway with people on understanding of what their responsibilities are to begin with. Or maybe not enough people actually getting power of attorneys done the first place either because of their cost, sometimes the complexity needing a lawyer and actually explicitly saying what their will is, whether it's financial or welfare powers. But guardianship part is also particularly difficult because these are things that are imposed on the person once they've lost capacity and the person who's been granted the kind of guardianship part then is kind of under less scrutiny because of the person who's kind of subjected to it has never had an opportunity to outline how they wish to live their lives. So, hopefully Addison Capacity Act will settle that down and find it in due course, but I'm very happy to go away and consider other offences which might be treated in the same way. It comes on automatically Mr Barson, you don't have to do anything. Sorry, I wasn't sure if I was going to be given the opportunity. I certainly agree and I agree with Social Work Scotland who said in their submission that they have concerns about the misuse of power of attorney, particularly in relation to where an older relative's money has been misappropriated. I think that this is an issue that either needs to be addressed through the reform revision of some of the provisions of Addison Capacity Act or potentially is an issue around policy. I think also I'm reminded that the Scottish Government consulted fairly recently on a strategy around social isolation, so I think there's probably a policy strategy response there in relation to some of the issues that colleagues have highlighted as leading to or highlighting the vulnerability that some people sometimes have. I wonder if I could ask the panel to comment on the submission from Social Work Scotland where they say that elder abuse is not a hate crime, I'm motivated from hatred of them. It's more a case that older people are seen as easy target and intrinsically of less worth than a younger person. It's that prejudice and this older less worth that would bring it under the equalities kind of banner of a crime that would be aggravated. If I could also ask Leslie Cook-Harrie to comment on your lack of data information, how in earth are we ever going to analyse the extent of this problem with Police Scotland and Crown and Procurator Fiscal and Order organisations, don't the court age? We certainly find it an on-going problem. Firstly, in terms of adult support and protection, action on elder abuse is a UK-wide charity and action on elder abuse Scotland is the only one that hasn't been able to produce comprehensive statistics on adult support and protection. We can get really useful local statistics but because they're collected differently there's no way of collecting at all. Secondly, we also submitted freedom of information requests to Police Scotland and the Crown Prosecution Service in 2016. We're told that they couldn't provide a breakdown on age because that information wasn't recorded. So pretty much it's been very difficult for us to get any information on the true extent of it, which is why we quite often have to refer to statistics in other parts of the UK as comparative evidence. I would certainly say that anecdotally, and I know it doesn't hold as much sway as hard statistics, we are here and it's a very similar picture. I would draw your attention to the statistics that we found as part of action on elder abuses research in England and Wales, where we find that of cases that were reported involving criminal cases regarding older people, the majority were not acted upon or resulted in cautions or suspended sentences. We submitted freedom of information requests to all police forces in England. One police force investigated 76 cases of elder abuse but all 76 resulted in police cautions. Another police force didn't record a single case of elder abuse. We also found that of those that do reach court very few result in prosecution. We found that the number of successful criminal convictions in 2016 represented just 0.7 per cent of the total prevalence of elder abuse. Obviously that is England and Wales but we are hearing that the picture is the same and I would very much urge that we need to be better at collecting statistics so that we can gather our own evidence to confirm and corroborate that this is also the case in Scotland. That was a prejudice rather than hatred, less worth, so that would follow under the aggravated offence as being a kind of definition. We do hear of some cases of hatred or ill will or hostility towards older people but that is very much them. We believe that the vast majority of older people are targeted because they are seen as an easy target or seen as being vulnerable. I made the point earlier that a lot of abuse, particularly financial abuse in family situations, is not regarded as criminal by the perpetrator. They think that if it is a family situation it is okay to do that, so very rarely are the criminal aspects considered. We really want to send a message to perpetrators that just because you are stealing from your mum does not mean that it is not criminal. It is a really good point on the vulnerability part. If you think about the future, in the next 20 years there will be half a million more people of age 65. The number of people in Scotland living with dementia of the same period of time will increase by 50 per cent to over 120,000. The audience for people looking to pick out on vulnerable people is going to get bigger. It is a stark warning in terms of trying to get something right now, but it is because they are seen as a soft touch. Obviously it will not be everyone, and not every older person is vulnerable by any stretch of the imagination. That is why people are targeting them. In a sense, a numbers game, the more people you go after, the more people you might be successful with. On an elder abuse point of view, they are realising that they are a softer touch because of this interdependence, because of this close trusting relationship and the people's inability to see a way out in terms of when they are subject to this abuse. I think that I would agree with what colleagues are saying. As social work Scotland has said in relation to people who are rarely targeted because they happen to be older, it is because they are potentially seen as an easy target. On the data issue, it is potentially the case that the adult support and protection strategic forum that the Scottish Government convene, which is monitoring progress in relation to the implementation of the act 10 years on, should be able to work with the conveners of the 28, 29 adult protection committees across Scotland to come up with a common data set. That is used universally and reflects the sorts of challenges that we are identifying in terms of identifying the age, the types of abuse that various people are experiencing. That should probably be able to provide a baseline and we can look at how that develops as the years progress. I think that that is helpful. I just wanted to start with the following point in response to what you said, Mr Patterson. In terms of concerns around the power of attorney system and the way that it operates and the opportunity it provides for abuse, I think that we would all acknowledge that. Similarly, in calling for changes, would you accept that we need to take care in not making the system unsustainably more complex and indeed costly, as it is clearly the case at the moment that many seeking for very legitimate reasons to obtain powers of attorney do find that process overly complex and in some places unsustainably complex? My experience is fairly limited in this regard. I am aware that, as Social Work Scotland has highlighted, there are significant challenges on those very small occasions when concerns are raised about how a power of attorney may be misusing those powers to take them back to court or to have that power removed or for an intervention to take place. I think that the challenge is best addressed by a heightened awareness campaign, a public awareness around the need for us all to get those power of attorneys for our 60th birthday and the idea that they become part of what we do in terms of our forward planning. The Scottish Government has a clear role to play in promoting those as a way of ensuring that people are making preparations for the situations that they might encounter in later life and are explicit about what their wishes would be in those circumstances. I want to follow up a line of questioning based on what Ms Garkerry was saying and what was being pursued by Shona Robison earlier. Obviously, we came into this almost as an issue through the consideration of the domestic abuse bill. I think that we accepted at that stage that there was a read across in terms of the types of situations that we were looking to consider as part of that bill. The bill is a course of controlling patterns of behaviour over a prolonged period of time, an abuse of either an existing vulnerability, the creation of a vulnerability, a power dynamic, all of which seems to touch on some of what you have been talking about in relation to abuse of older people. However, as we have established this morning, determining the point at which somebody is defined as an older person and the effort that they should come into play is difficult. From the experience of the domestic abuse bill, is there a model that you would see as transferable to a situation where the abuse of a position of responsibility or a position of control takes place and therefore could be taken forward under criminal proceedings in the way that we have identified and put in place through the domestic abuse act? While I see elder abuse and domestic abuse as quite different issues, there are some overlap and some crossover, but there are very unique dynamics that are unique to both areas. I think that a model similar to domestic abuse prosecutions could work well for elder abuse prosecutions. I do not believe that elder abuse prosecutions should be prosecuted under domestic abuse. First, I think that there is a society perception that domestic abuse is very much seen as a younger women's issue. We know that it affects men and older people as well, but it seems to be very associated with women and the power and control and the gender dynamics there, which is why I do not think that it would work well for elder abuse to be prosecuted in that way. I think that there are merits for a model that is very similar to that, which recognises the very unique dynamics of elder abuse. I also suggested in my written submission that the process of jury direction and sexual assault cases could be something that could work well for elder abuse. I think that a lot of people are not quite aware of the very unique dynamics and the tensions and the nature of elder abuse. I think that it would be very useful to give jury direction, to give a better understanding of that. We quite often hear of cases where elder abuse has been reported quite some time after the incident and people will say, why are you only reporting it now? It is also very common to rape cases and there is an assumption that the person must be lying or that they are just trying to get hold of older persons inheritance, for example. We have heard of a few cases that we dealt with a lady a couple of years ago, whose father was being abused by the other daughter, the lady's sister, but the lady's sister who was the abuser was also psychologically abusing the sister. The sister was terrified to speak up and the older person was terrified to speak up. It was only a year after his death that she had the courage to speak up about it. I think that things like that would be useful to have jury direction, to help to explain some of the reasons why people do not speak up or why they speak up later. I think that that would be a very useful addition to the system and would raise awareness of the unique dynamics of elder abuse. I would absolutely take your point in relation to viewing elder abuse and domestic abuse very differently. One of the other elements of that recent legislation was the opportunity not simply to rely on complaints being made by those who had been abused, in a sense, on occasion processes to be taken out of the hands of the victim. In the interests of public safety and all the rest of it. Again, from what you have been describing about the reluctance of some older people to report abuse, either because they do not recognise that it is taking place or because of the potential implications for the relationships within a family setting, is that something that you would see as being necessary in any future changes to legislation in regard to elder abuse? I mentioned earlier debates around whether we single older people out as a specific group. That is quite an ageist policy, but I would argue that the way that we treat victims of domestic abuse is quite unique and quite specific and gives them very specific protection. Something similar should be offered to victims of elder abuse. A take point was made earlier that a lot of those issues are difficult to define the age at which those prosecutions should kick in. That is something that needs to be considered further, but I would urge that it is an issue that needs to be seen as a stand-alone issue. I would point to cases in other countries where it works well. I mentioned in my submission that there are certain states in America, most notably San Diego, where they have specific events of elder abuse and very high prosecution rates. Tied in with that, it is not just about prosecutions. The department that deals with that will offer quite intensive support to older victims going through court. There is also a presumption that they will prosecute. They do a lot of awareness raising to the general public and a lot of work to encourage older people to speak up about it. I would urge you to have a look at that model, because I really do think that it is something that could work well in Scotland. From my perspective, there might be one more for the panel that follows on from you. From your perspective, is there felt to be a gap in the law in bringing forward those sorts of prosecutions at the moment? I would say so. Going back to the earlier point, it is very difficult to get statistical evidence on that. In fact, it is impossible. Anything that I could add would be anecdotal. I have also pointed in my submission to quite a few media reports, something that we do on a daily basis, is to look at criminal cases involving older people. We probably write to the media on a daily basis about reports of care workers, for example, being struck off the register, but criminal charges have not been considered. It is a message that we are always pushing. We just feel that that adult support and protection system and other protective systems in Scotland work very well, but it is the criminal aspect that seems to be missing. Mr Paterson, you said before quite rightly that it is not always about criminal prosecutions, which I think that we would all accept. Are you aware of circumstances where colleagues of yours might be persuaded that there are criminal charges that could be brought but that the nature of the crime that has been committed is problematic in taking forward that sort of action? I think that that is probably a question that is better directed towards Police Scotland and the fiscal service. I recognise the distinction between the balance of proof for criminal prosecution and the balance of proof that is being considered in relation to workers being struck off the triple SC or the NMC's register. I think that that is part of the challenges beyond reasonable doubt versus the balance of probabilities here. Before we leave that statutory aggravator, in Lord Brackendale's submission, he talks about the prosecution process failing people whose reliability as a witness might be questioned, for example, vulnerable, frail, older people. It suggests sometimes that they would be reluctant to take evidence because it might be too traumatic for these people. In those circumstances—this is from the social work submission again—it suggests maybe guidance to Crown Procurator Fisco and Police about how best to support those witnesses. The committee has just been looking at stage 1 of the vulnerable witnesses. We were starting with child witnesses. Would this be something that would fall in the category of adult witnesses looking at videos recordings? That is something that is temporarily taken. Given that the length of time it can take to get to court means that their mental health state may well deteriorate. We have submitted information as part of that bill and we would support many of the measures that are included there, particularly those that are currently available to children. We see no reason why they should not be available to older witnesses as well. I would make the more general point, though, that we can have the best prosecution system in the world and the greatest support ever to encourage people to go through with a court process. If they do not speak up about it in the first place, it is a bit of a wasted exercise. We are a very small charity, but we do our best to raise awareness of elder abuse. That needs to be a concerted effort that we all work together to encourage people to speak up, otherwise they are never going to go to court in the first place. It helps that if we have a lot of those measures available and let people know that it is there and let them know that there are alternatives to physically speaking in court, it might make them more likely to speak up, so I think that it is a step in the right direction. It certainly makes it a lot easier to give evidence. Mr Shrucar? I think that any mechanism that could give comfort to older or more vulnerable witnesses is a good move. I think that part of this is about culture as well, for either prosecutors or the police, or whoever it is, to ensure that they do not think of older people or maybe more vulnerable as any less credible but take every step that they possibly can. A lot of that can even do with how they communicate with them, whether it is by the type of language that they use or regular reporting back on the progress of the case is really important as well. Those older people themselves think that something is actually happening. I have heard a number of occasions from older people about that they might report something and never hear anything again. Again, this is anecdotal, so having that confidence, and as Leslie mentioned earlier on about referring back to friends and all the rest of it who might talk about it, they go, was there any point in reporting this because nothing will ever possibly could possibly happen. Mr Paterson? I agree that different ways of supporting people to be witnesses should be explored. I think that video evidence would be one such way. I think that also the developments around the appropriate adult scheme, the potential that that might be something that could be supported to extend to older people who have a degree of frailty or vulnerability. I received, quite late yesterday, the submission to the committee from the Crown Office and Procurator Fiscal Service, but I have to say that I was very reassured by the guidance that they already have in relation to how older people, as witnesses and potentially as victims, should be supported through the processes. That is already in place, but the challenge is that, if they are not reaching that stage, that is of limited value and what can we do to support people to reach that stage? Liam Kerr supplementary, Fulton MacGregor. Briefly, Lesley Carcury talked in your response to Liam McArthur's line of questioning about the successful San Diego model. Do they have a definition of elder that we can refer to? They do. I cannot remember it offhand. I have it in one of our reports, which I can certainly send in to you. I know that you referenced it there, but do they peg to an age as far as you are aware? If there is an age, I think there might be. I will look into it and I can send it to you. I am very grateful. Fulton MacGregor. Thank you, convener, and good morning, panel. I think that it has been a very interesting session and you have all articulated the views of your respective agencies very well. Boses I at Scotland in their input to said that human rights compliance does not principally mean prosecuting offences once they have occurred, it means that, as far as possible, they should not occur. Can I ask the panel to comment? I know that you have touched on it in various parts, particularly yourself, Lesley, but I wonder if you can comment if you think that the current system in Scotland, both on the prosecution level and the adult support and protection framework that is in place, meet Scotland's obligations for equalities in human rights? I totally take the point that it is preferable that crime does not occur in the first place, but unfortunately, because we know that the vast majority of harm and abuse of older people takes place in their own home behind closed doors, it is actually very difficult to pick up on that and it makes it very difficult to carry out preventative work. I believe that the adult support and protection process in Scotland works very well and is the envy of the UK, because we are the only part of the UK that has dedicated legislation in this area, but with the best will in the world, if someone is not speaking up and if the abuser is carrying out the abuse in such a way that it cannot be picked up upon, it can be very difficult. We try as much as we can to encourage people to open up and to call our confidential helpline, but, again, going back to the issue of family, as you can imagine, if your grown-up children were doing this, you would probably be very reluctant to tell anyone. We know that, through the adult support and protection act, various public bodies have a legal duty to report any suspected instances of harm or abuse. For example, a GP, a lot of public sector bodies would need to have a legal duty to report that back to the council but they cannot pick up on everything, especially abuse, which is taking place behind closed doors. There is a lot more that all agencies need to do to work together to encourage people to speak up, and Gordon had mentioned earlier the important work that the Scottish Government is doing around the strategy for tackling loneliness and social isolation. I submit information as part of the evidence gathering for that. I had a quick come through it, and I believe that there was no mention of the increased risk of harm and abuse from loneliness, and I think that that is a key factor. I think that that is one of the key reasons why people do not speak up because they are so lonely that they are choosing to put up with it, so I think that there is a lot that we, as a society, need to do to tackle the problem of loneliness and social isolation to make it a lot easier for older people to speak up. Where do you think that the system could help with that particular example? As you gave that example a couple of times, it is really quite powerful, and I am sure that the MSPs have all come across constituency situations where something like that might be happening, where you might have a relative, as you have mentioned, a grown-up child. You know that it is perhaps either committing offence knowingly or unknowingly, as you have also pointed out. Where do you think that fits into the human rights aspect of this? You might have a person who is in an offence committed against them, but they might also be quite clear that they would not want prosecution to get... I mean, I know that it is a very ethical question to end the panel, and I apologise for that, but if you have any idea about any thoughts on where we could take that. Yeah, it is a very difficult one, and it is one that we grapple with all the time. When we do hear from older people who tell us that they are being harmed or abused by their children, we have a confidential helpline, so we would never urge someone to report if they don't want to. The best we can do is tell them about the benefits of reporting and tell them what might happen. But, as I said earlier, sometimes we just need to accept that that person is not going to report their child or other family member, which is why we would think of other routes such as we'll actually have loneliness as an issue. Maybe we'll refer them to a befriending group, for example. If, for example, it's financial abuse, we might say, well, have you considered perhaps making another trusted person your part of attorney rather than your son? Going back to one of the points raised earlier about part of attorney, it's very difficult for us as an organisation because we need to make people aware of the potential pitfalls of things like part of attorney, but at the same time, we don't want to scare people off because if it's done well, it's actually a very effective safeguard against financial abuse. The problem is that if people leave it too late and then all of a sudden you get the long-lost nephew coming out of the woodwork and saying, oh, I can help manage your finances and because there's no one else in that older person's life, they'll allow them to do that. So it's very difficult and I don't think that there is anywhere that we could compel someone to report someone against their will, but I think we need to be looking at various parts of government policy and developments in terms of how can we create a safe space and a space where we can remove some of the barriers so that people can comfortably report and that other people might be able to advocate on their behalf where necessary. I'll just add very quickly that I think the Scottish Government is absolutely committed to legislation and laws. I think it's putting them on the submissions that are fit for the 21st century and the human rights element and this, but thinking about this specific inquiry into elder abuse, part of the human rights act requires public bodies to act preventatively to protect dignity and human freedom as well, so it'll really be to reflect on that, the preventative measures that could be taken, and I've taken the point, let's say, that those people might not want to pursue prosecution but making sure that there's legislation in place to ensure that anyone that is prevented from these things happening to them. That concludes our line of questioning. Thank you very much for an excellent evidence session, which has given the committee quite a lot to think about. We now suspend to allow for a change of witnesses and a five-minute comfort break. Our second panel, and I'm delighted to welcome Anthony McGeehan, head of policy, Crown Office and Procurator Fiscal Service, Rosalyn MacTiger, the Lost Sight of Scotland, and Chief Superintendent John Mackenzie, head of Safer Communities Police Scotland. Can I thank all the witnesses for your written submissions? They are immensely important before we come to take formal evidence that the members have an opportunity to look at them. I move straight to questions starting with John Finnie. Thank you, convener. Morning, panel. I'm conscious that we're all sitting in through the previous session there, so I'll start off with the same question but maybe roll the two together, and that is, can you comment on the extent and nature of elder abuse and is that full range appropriately characterised as being criminal, please? Mr McGeehan? Certainly, I'll start. The Crown Office and Procurator Fiscal Service have some relevant statistics in relation to that question, but in answering the question, I would recognise that there is no uniform definition of elder abuse, and also this morning, as well as recognising that lack of uniform definition, the word prosecution has been used, but the word prosecution has been used to describe a variety of different stages of the criminal justice system. I'll focus on relevant statistics in relation to those cases that are reported to COPFS, which is obviously different from the cases that may be investigated by the police or other relevant investigating authorities or those cases that may not be reported by victims or witnesses to the authorities. In terms of the cases that are reported to COPFS, the COPFS database was interrogated to examine whether or not there was any relevant data that could be extracted. With some caveats, COPFS can provide relevant data. The first caveat would be that the COPFS database is an operational database. It is not one maintained for the purposes of statistical examination or in gathering of relevant data. It is also, in part, dependent upon information that is received by reporting agencies. However, witnesses within cases reported to COPFS, the information that is provided in relation to those witnesses includes the age of each witness or victim, and reporting agencies identify individual witnesses within reported cases as victims. With those caveats, the information that is available is that when we look at reported cases to COPFS between April 2016 and December 2018, approximately 400 to 550 victims aged over 60 are reported to COPFS each year, and we can break down the profile of the principal charges in those cases. That breakdown would be as follows. 28 per cent of those reported cases relate to principally charges of violence. 25 per cent relate to principal charges of sexual offences. 22 per cent relate to charges that might be described as abusive behaviour, and 5 per cent relate to charges that might be described as dishonesty. An interesting feature of those cases is that over 60 per cent of the victims aged 60 over are recorded as having been involved in a domestic abuse incident. In individual years, that percentage rises to 69 per cent. We see that, within that profile of reported offending, which might qualify as earlier abuse, a significant proportion of that offending occurs within a domestic abuse context. For the avoidance to everything that hinges on definitions that I accept, you mean domestic abuse in the terms that we would already understand in this room. Indeed, thank you. In addition to the submission by The Crown, I go back to the point that you have highlighted already. Please, Scotland, do not hold statistics on relation to the term elder abuse because we have heard already today that the term elder abuse has no definition from a legal perspective within Scotland. However, I anticipate that, and we have heard points of not recording witness ages, victims ages, witness ages are recorded within Police Scotland systems, however the challenge would be the sexual component of that. I do not have statistics to demonstrate the age range of offences and whether that would be helpful or useful for this discussion is questionable based on the subject matter of elder abuse and that definition around elder abuse. However, I would highlight that the submissions that have been made in relation to under-reporting of abuse based on age or age hostility or vulnerability, I am quite confident to say that there is a significant under-reporting of such criminal acts. I base that on a number of factors, including the factor around hate crime in its general sense whereby hate crime itself is anticipated to be under-reported by up to about 80 per cent. The figure in terms of how widespread is the challenge that we face in terms of the term elder abuse or abuse or criminal acts targeting individuals who are vulnerable due to age or hostility towards age, I am clear that there is a significant under-reporting. I would also go back to, for a variety of reasons that I am sure we will explore, and I would also go back to the point that there probably is a requirement to look further at the analytical opportunities that we have to try and define what the size of the challenge is as we go forward. However, I do not have anything that will bring, from a statistical perspective, any additional information to this panel at this moment. Are you able to give some background to who reports that abuse to you? You will be a recipient of reports and allegations from Care Inspectorate. Who else would make? Are there any other statutory bodies that would make complaints of that nature to you as well as individuals? Well, it is clear that, and I think that it is helpful that the Crown Office has highlighted sort of four categories of abuse that they would classify or areas in which would be classified as abuse or neglect from an age perspective. Obviously, family members and victims themselves will report, but in terms of agencies, Care Commission, local authorities, Care institutions, there is a wide variety of institutions that would report to the police. There would be a robust investigation into the circumstances around the circumstances. It is interesting that one of the panel members was asked a question about the difference between people getting removed from positions. I suppose that there is a difference between a criminal allegation or a procedural allegation in relation to work-related practices, but there are a wide range of bodies that would report such instances to the police. Are you in a position to say that, acknowledging the statistical challenge that might be there, or do you have a gut sense as to the percentage of those reports that are made to Police Scotland would result in reports to the Crown Office? I do not have a percentage that I could give that would be helpful at this moment in time. I am quite content to go back and have a look to determine whether we could look at that percentage, but I am not confident that I would be able to provide that with those details. However, I will certainly go back and report back as I have previously done to this committee in writing. I do not know of Ms McTaggart. In terms of who is reporting those offences, as solicitors, we would tend to represent the accused and not the witnesses, so I would defer to the Crown and the Police in relation to who would report it and the statistics in relation to that. In the previous evidence session, we heard from action on elder abuse. In a note in their written submission, they point to statistics from England and Wales with regard to the number of successful convictions in 2015-16, which was about 0.7 per cent of what they thought was the total prevalence of elder abuse. We also heard from them in the oral session of a case whereby a victim had had to badger police to be taken seriously. Is there a cultural challenge in terms of elder abuse being part of some sort of hierarchy whereby it is not seen taken as seriously as other crimes might be? From the COPFS perspective, since 2013, we have a published policy in relation to crimes involving elder persons. That policy makes clear the robust approach that is taken by COPFS to those types of crimes, and it specifies a presumption in relation to prosecutorial action where there is a sufficiency of evidence. I think that the lack of relevant statistics should not be read as reflecting a lack of a robust approach to those types of offending or offences. From the perspective that I have highlighted previously at various stages, policing has changed dramatically over the years from what was traditional in the sort of pelian principles whereby, at this moment in time, in excess of 70 per cent of calls relate to that vulnerability. Police Scotland has invested significantly in training and our approach to dealing with incidents whereby we are primarily dealing with issues of vulnerability. It is always disappointing to hear cases highlighted by other parties of an insufficient service, and I believe that the term badgering police was used during the evidence session. I am unable to make comment on that specific case because I want to clear what the details are, but it is always disappointing to hear that. However, in terms of our hierarchical system, in terms of importance, absolutely not, it is clear that we prioritise vulnerability in the community. Our aim is to ensure that we carry out robust and professional investigations to all reports of criminal acts. However, there will be occasions that I anticipate across all of policing whereby singular incidents could be highlighted about a poor service, which is always disappointing, and I would intend to go and discuss this with a colleague to see if I can provide some additional guidance or get some context around that. However, there is certainly not a lack of priority in dealing with individuals who are vulnerable within the community of Scotland. In terms of that wider support, the Police Scotland written submission points to protecting elderly people from exploitation, including building partnerships with staff and other agencies, such as banks, post offices, local authority, consumer and trading standards departments. I wonder therefore what the police currently do in terms of that support. Is it about signposting to the appropriate advice services if they have been a victim or is it about reaching out to them more proactively? I think that it is both in as much as there have been numerous successful campaigns of late in which we have worked in partnership with national banking institutions and other agencies in relation to identifying issues, especially around areas whereby there is financial abuse and there is a signposting component, but in terms of the proactive component, that works through our community-based officers who work in communities who, if they have interaction with individuals who they believe to be vulnerable due to age or whatever vulnerability, then they will take proactive measures to provide advice guidance or engage with wider family members to provide that advice and guidance. I wonder if I could pick up Mr McGeachan on your point that there is a robust prosecution of this type of abuse. With the sufficiency of evidence, social work has said in there or pointed out in their submission that the legal system has challenges in providing protection and justice where the current investigation and prosecution process fail people whose reliability as a witness may be questions, for example vulnerable and frail older people. It might be looked at as too stressful for them or because they have dementia or they are older, then there is not the same amount of evidence gathered. If that is the case, would it be good to look at perhaps the vulnerable witnesses, the adult vulnerable adults is something that is in the next tranche envisaged under the act should it be passed? Would that be particularly helpful given, if it is deteriorating mental health, the length of time it can take for these cases to come to court to ensure that you get the very best evidence as soon as possible, including prior statements and video recordings? At present, as outlined in our submission, all witnesses aged over 60 are referred to our victim information and advice service. We recognise that not all witnesses aged over 60 will require special measures, as indicated by the earlier panel. There is no magic age of which a person becomes vulnerable. Our victim information and advice service will currently engage with the witness in relation to those special measures that are currently available, which include evidence by commission, which is the principal focus of the bill currently going through the Parliament in relation to vulnerable witnesses. At present, the menu of support that may be available to a witness dependent upon their particular vulnerability includes screens, a tv link, the presence of a supporter and the use of a prior statement as you have already identified or evidence by commissioner. The different approach taken by the vulnerable witnesses to criminal evidence Scotland bill is in relation to the default position for witnesses, depending upon at present their status as a child. The bill contains a power to roll that out, to deem adult vulnerable witnesses in relation to particular categories of offence. The scope exists at present for the use of a prior statement, as described by Social Work Scotland. The scope exists at present for a vulnerable adult witness to give evidence by way of commissioner. It would obviously be a matter for the Parliament as to whether or not they would wish to roll that out further in the context of the bill. So you would dispute that there is any kind of reluctance or there hasn't been as a robust an approach to this because it just might be too stressful or because the person has to mention or because there is some question about their reliability to actually using the special measures in place just now and the ones that could be available under the Vulnerable Witnesses Act. I would recognise that there are particular challenges, particularly evidential challenges, in relation to the categories of offences or the type of offending that we are speaking about, but I would rebut any suggestion that prosecutors do not actively look for the types of support that might be best suited to the individual witness, their status and any vulnerability that they have, including issues such as dementia. I would like to repeat my line of questioning to the first panel, although I will slightly change the tack on it because I understand that largely all three of the organisations that you are representing favour something along the lines of the Brackardale model with aggravators, but just following on from the discussion in the previous panel about the potential limitations, so first of all that a lot of these issues aren't necessarily motivated per se by hate and that maybe just essentially circumstance. Can I ask whether or not an aggravator around vulnerability would sufficiently capture those things and in particular some of the elements that were discussed around what might be in terms of borrowing the concepts from the Domestic Abuse Act around coercive and controlling behaviour but within this context, would that aggravator model capture those things? If so, from a legislative perspective, would you think that that could be brought about if you were pursuing the Brackardale model? In answering that question, I would reference Lord Brackardale's assessment. Parallels have been drawn with domestic abuse and the most recent evolution of our approach to domestic abuse in relation to coercive or controlling behaviour. COPFS cannot provide any evidence in relation to offences involving that type of behaviour and I would reference Lord Brackardale's report to paragraph 4.65, where his conclusion was that based on the evidence and arguments that he had heard, he did not think that there was any real gap in relation to patterns of conduct against the elderly, which ought to be criminal or but are not. That took Lord Brackardale on to propose a model based on statutory aggravations and there were two separate aggravations proposed, one in relation to age and one in relation to vulnerability. That is an approach that COPFS is familiar with and would recognise in terms of the types of offending that we are dealing with in a daily basis. Just before I asked Roslyn McTag at the same point, are there any particular consideration in terms of framing those aggravators that you feel might be necessary in order to fully capture the issues that have been discussed so far this morning? Will the earlier panel recognise the difficulty of identifying a particular age that might qualify for any age aggravator? Lord Brackardale proposed an aggravator simply based on age, as opposed to defining an age for older persons. Similarly, there would be challenges in relation to defining vulnerability or perceived vulnerability and what might qualify as a vulnerability, perceived vulnerability, whether that was on the basis of age. As has already been mentioned in this morning's discussion, a vulnerability, for example, is based on either a real or perceived learning disability. In terms of assessing whether the current legislation or proposed legislation can indeed capture all the areas that we are seeking to protect, we should certainly mention the 2018 act and whether we now take time to ascertain the effectiveness of that in allowing protection in domestic or intimate relationships in those settings. The reason that we are having this evidence session is because we are all concerned that there remains a gap and how best to fulfil that and to provide protections. The age aggravation allows for an equal protection for people of all ages and that is indeed supported by the Law Society of Scotland. Thereafter, in our written submissions, we suggest perhaps other potential areas that might cover any gap should that be left behind by the current proposed changes. In terms of vulnerability and an aggravation in relation to covering exploitation and vulnerability, that might provide a route to cover any areas that are left behind or, indeed, you will note within our submissions that we refer to further potential coverage being taken up on a route similar to protection of young persons, the Children and Young Persons Scotland Act 1937, as a backstop in terms of allowing a full sufficiency and protection of those affected by vulnerability such as those that we have been discussing this morning. Chief Superintendent Mackenzie, I wonder if I could ask you the question in a slightly different way. In the previous panel, we heard that there could sometimes be a bit of a blurry line just given the circumstances. We are talking about complicated family relationships and where essentially something stops being simply dysfunctional and relationship breakdown and tips over into something that should perhaps be criminal is clearly what we are focused on. Is there a sense in which the police would find it useful to have a clearer threshold and does going down the route of aggravators help to clarify what is criminal and what is simply dysfunctional? I will not repeat the quotes that I have highlighted from Brachadale Lloron by my colleague from Crown Office. I suppose that going back to your earlier question that existed in the earlier panel, you talked about a baseline offence and then that they are after the aggravators. Let me just touch on Brachadale himself and as much as paragraphs 4.66 and 4.70 refer to the merits of both the recommendations 10 and 11 about the age hostility. Actually, why age hostility does not capture the challenge that is trying to be achieved here and as much as trying to protect individuals who are vulnerable and that aspect of not defining age under the term age hostility, so not trying to place an arbitrary age on that. Police Scotland has also highlighted that we then support the view of having an aggravator that looks at wider vulnerability. Now that is the aggravator that I believe in my professional judgment is more beneficial because then it allows us to make a decision on not the threshold that you have talked about but actually what is motivating the criminal act that is being presented. So even within a family setting you would be required to have a baseline offence which is then aggravated as a result of the vulnerability of the individual within the family setting. I suppose that I then go back to the point, I just want to make a point just based on one of the final questions that you've highlighted in the last evidence session about human rights and as much as police being able to make a judgment within a family setting of whether it's in that person's human rights to actually progress a criminal investigation, whether that individual does not want to be progressed or not. Well actually that in my mind doesn't come into a threshold scenario. Actually we have a duty to ensure that we prevent wider criminality, that we look at protecting the individual concerned and wider society and if that ultimately means then progressing an investigation without the support of the victim. I accept that that then has difficulties when we get to any future stage but in the stage 1 investigation that does not prevent that stage 1 investigation taking place. Thank you. So again just finally and again repeating a little bit what I asked the previous panel. I think we heard that there is perhaps a case to look at probate and whether or not we need some additional safeguards to prevent that being abused. I mean likewise I think where an individual is found guilty of culpability in someone's death, in particular a murder, whether or not they should be able to be an executor of that person's will. I think there's another question where I think there are clear pinpoint areas of law where perhaps some of those issues do require some specific changes. I'm just wondering if the panel would agree whether there are those areas in particular are ones that need looked at and indeed whether or not there are other specific areas of law which with the benefit of this perspective could look at review beyond the question of whether or not there should be a specific fence or an aggravator. I'd be interested in any of the panellists' views on that. As a prosecutor I cannot comment on the law in relation to probate for example and again as a prosecutor it wouldn't be appropriate for me to comment on the consequence of a criminal conviction in relation to for example the accused's status as an executor. Beyond the improvements proposed by Lord Bracadale I can't identify any additional improvements in relation to the prosecution of those offences as distinct from perhaps the focus of your question which is the wider context of the consequences of abuse. I recognise that I sort of maybe not quite within the scope of the CFO so I do wonder whether or not the law society might have a view on those issues in particular. Certainly there would appear issues that were discussed in the first session this morning and issues raised by yourself of people being a power of attorney or indeed in guardianship orders. There's significant issues in terms of the elderly person and their incapacity perhaps an area requiring more education in relation to the powers being granted at the point of power of attorney thinking of the submissions this morning by Ms Carcary in relation to perhaps anecdotal evidence of powers being granted to children who may be causing harm to their parent and the emotional perhaps manipulation there or naivety of those granting those powers of attorney that do afford a significant level of power once granted. Certainly there may well be an area that that would require further education and outreach in relation to those vulnerable groups, hopefully to reach them in advance of such powers being granted. I suppose that from a police scolland perspective, on the same basis, it must not be that he can tell you that it's inappropriate for him to make further comments, it's inappropriate for a police scolland to make further comment on the questions that you have posed. We have a very briefly Rosalyn MacTaggart. Earlier you said to Daniel Johnson that we might need to take time to ascertain the impact of the domestic abuse legislation, and that's something that's developed through the submission that was put in earlier. I just wonder if you might develop that from a full understanding. Is it your understanding that someone or some agency is proactively assessing the outcomes derived directly from the domestic abuse legislation? If so, what data are they capturing and when will that report? Indeed, I would certainly hope that the Crown Office and Procurator Fiscal Service might monitor the effectiveness of prosecution in terms of the new legislation and capture data that would allow the effectiveness of new legislation to be ascertained. As far as you are aware, the Crown Office and Procurator Fiscal are the only ones looking at the outcomes of that. It's just because you mentioned it throughout your submission as being quite a crucial thing to know the outcomes, and I'm just wanting to know who is doing that. Absolutely. I would certainly hope that it would be the Crown Office and Procurator Fiscal Service. I wouldn't be able to point you to any other agency who would be collecting that data. Mr McGeehan, would you like to comment on that? The Crown Office and Procurator Fiscal Service currently records data in connection with domestic abuse offences, and we will continue to record data in connection with the instance and outcome of domestic abuse cases. You used the word effectiveness, and I think that my colleague used the word effectiveness. COPFS would provide that information perhaps for others to judge what is meant by effectiveness and whether or not the act meets those particular definitions. Thank you, convener. Good morning. Is it possible for you to see what impact in sentencing an aggravator, or even a standalone offence, would have where it to be introduced? It depends on the framework in which the statutory aggravator is set, but a common framework is to require the court to take the aggravation into account, and if it does not to articulate why it does not think that the aggravator is relevant for the purposes of sentencing, courts can currently take into account aggravating factors in relation to crimes against elderly persons, including their vulnerability and the exploitation of that vulnerability. One of the advantages of a statutory aggravator is that it can create a framework for that consideration by the court. It would depend presumably on the individual case and what the impact on the sentence that would have. Is that your understanding, Ms McTaggart? Indeed, in providing a disposal for any offence, once having pled guilty or being found guilty after trial, that person sentencing the accused, be it a justice of the peace of sheriff or a judge, ought to take into account the relevant facts and circumstances of both the offence and the offender. Indeed, in our submissions, we reference a judge providing direct reference to the age of a vulnerable person and the length of time that they spent in their home, which adds to the emotive nature and vulnerability that the judge seems to be taking into account when disposing of the matter. At the moment, there is not a statutory aggravator, but it is happening. Do you feel that the introduction of one would make it clearer or more effective? Perhaps, although it is not quite an area for me to comment, I would certainly say that our judiciary will take into account all relevant facts and circumstances and whether there is a statutory aggravator in relation to the offence, I would expect the person providing outcome for any offence to truly take into account all of those circumstances, including vulnerabilities of those involved. I would probably refer to the Crown Office submission on page 4 of the second paragraph, which outlines my understanding of the expectation of an aggravator from a courts perspective in which that aggravator would then be required to be considered unless there is a rational why not, but beyond the submission by the Crown, the expectation of an aggravator that is highlighted within page 4 is highlighted. I will follow up on the question from Daniel Johnson and Liam Kerr. Obviously, the Brachydale report has set the statutory aggravator in the context of wider hate crime both in relation to age but also in terms of vulnerability. I think back to where the committee first addressed the issue in the context of that stage, the domestic abuse bill. We were told at that point that, while much of what was covered was already criminal, the aspect in relation to coercive and controlling behaviour, the pattern of behaviour, as opposed to point-in-time incidents, was not adequately covered. I think that we were told about the differences between elder abuse and domestic abuse. There is obviously an overlap where that abuse takes place between partners or ex-partners, but there is a large swath that would not be covered by that. It strikes me if there was a gap in the law prior to that act in relation to domestic abuse covering coercive, controlling behaviour and patterns of behaviour over a period. Is the same not true in terms of dealing with issues of criminal behaviour in relation to older people? Will that involve vulnerability being exploited where the age dimension comes into play? It seems to be self-evident that if the inadequacies or the insufficiencies in the way that criminal law was set up in relation to domestic abuse prior to that act being passed, presumably there must still be an insufficiency or a gap in the criminal law in relation to elder abuse. In terms of looking at the gap that perhaps lies in coercive conduct, as you have termed it, it may be that the gap that is left behind by the new bill is not one of age but of the nature of the relationship. The current restriction is that of a domestic or intimate relationship. We have heard evidence that the gap that is left behind is that the perpetrators are family members with whom they are not in an intimate relationship, so that may well be the gap rather than one of age. However, it is an area requiring further investigation and development. I absolutely appreciate that. I think that we were told the reasons why you need to consider these separately, albeit that there is an overlap in relation to those intimate relationships. However, if the criminal law has struggled to deal with the issue of coercive controlling behaviour and the patterns of behaviour over a period, that would seem to apply in relation to less intimate but still perhaps in a family setting relationships where positions of power or authority are being abused, would it not? I can understand why you would maybe want to take time to see the way in which the most recent legislation in relation to domestic abuse impacts and the effect that it has, but that would tend to confirm that there remains a gap. We are taking time to assess how best to address it. Indeed, in referencing some of the findings of Lord Bracadale, there requires to be some time and consideration given to statistics. Whether there does remain a gap and behaviour that is not criminalised as yet, it might well be that there is not behaviour left behind to criminalise that is not caught by legislation that we have presently. Obviously, the bill that would relate to the psychological and coercive behaviour that would affect domestic relationships and, indeed, that would appear to capture a high percentage of crimes involving elderly people. The position for the law society would be that we would require to ascertain the effectiveness of the legislation as it currently stands and to assess whether there is any gaps. I will get back into the debate about the effectiveness and how that is judged. I was just wondering whether there is an additional complication in that. Again, as we were hearing from each of the panellists in the first panel, their reluctance is very often of individual victims to come forward, either because they do not recognise the abuse as abuse given their relationship or a concern about the implications for the breakdown of that relationship, were they to come forward with a complaint. Presumably, that makes it more difficult, but it is sensitive and complex to take forward any sort of complaint. Is that something that is being looked at in particular? Can that be assessed separate from the analysis of how the latest domestic abuse act is impacting? In assessing the difficulties of perhaps reporting, I think that it would refer to the need for greater support, signposting support of vulnerable groups to assist them, to make them aware of various options open to them in terms of reporting, support networks, agencies and perhaps education in relation to the role both of the police and of the Crown Office and Procurator Fiscal Service might well assist in terms of the level of reporting, but again, that might be an area better answered by those for the Crown and for the police. In terms of the police where there is an unwillingness on the part of a victim to either recognise that a crime has taken place or an unwillingness to make a complaint because of the potential implications of how the police are addressing that sort of situation at the present time. I would probably use the same parameters that you would use in a domestic abuse setting whereby the issue of the psychological coercive controlling behaviour is such that an individual may not be aware that they are a victim of domestic abuse and, by extension, if you are using the term elder abuse in its widest sense, may not be aware of being a victim of elder abuse. To secure investigation, the decision making process around whether a complaint is made or not is removed from the victim. The position here is that if there is any source of information to indicate that somebody is a victim of an abusive act, criminal act, neglectful act, whether it is through age or whatever wider vulnerability, the police do not need to await for that individual to come forward and provide a statement of complaint. As we do within a domestic abuse environment, the guidance is clear that that decision making process can be taken away from the victim, for the benefit of the victim and for the purposes of the investigation. That generates challenges for any further prosecution process. However, it allows us to undertake an investigation, it allows us to engage with wider partners, to ensure that wider support mechanisms are in place. We have talked about social work earlier on and we have talked about adults at risk whereby that type of investigation would not be done in isolation by the police service. There would be a multi-agency response so that we can ensure that there are wider support mechanisms. If criminal investigation is not founded, the support mechanisms will still be put in place. In terms of your core question of how that is dealt with, the decision is taken away from the victim if the victim does not wish to come forward. We have an evidential case that somebody has been neglected. Often the evidence that we were getting during the consideration of the domestic abuse bill was novel to that bill. However, from what you have described, that is an approach that Police Scotland takes, presumably not just in relation to domestic abuse or the elder abuse cases, that there is an opportunity for the police to make a judgment on the basis of the evidence presented to them, whether or not to undertake a more detailed investigation. The questions could be a little bit shorter please than the responses. I would highlight that for a variety of crimes. I recognise that hate crime is underreported. I have highlighted that I believe that hate crime to be underreported by some studies that suggest 80 per cent. However, that does not negate the opportunity of a witness to come forward who is not the primary victim to highlight that hate crime is taken place. Would Police Scotland investigate it? Of course, we would investigate it. Likewise, if somebody came forward who was not the victim of a neglectful act, would Police Scotland investigate it? Yes, we would. Thanks, convener. At the end of the last panel, I asked about the panel's thoughts on how Scotland was meeting its human rights and equalities obligations in this area. I am going to ask the same again. In the last panel, I quoted the Law Society, I will not do that, but you will have heard the discussions that took place at the end of the last panel. The grappling that is going on between sometimes quite difficult and complex situations whereby an offence has been committed against an individual, but it might be tied into a close family connection, and perhaps the perpetrator is not realising that he has committed an offence. If the panel gets any thoughts on how the current legislation and frameworks can help to promote equalities in human rights in this particular area, our obligations to equalities in human rights. I cannot comment on the state's compliance with the ECHR in relation to this particular field. I can only provide a perspective in relation to the prosecutorial approach. I think that, from a criminal law aspect, the protection of human rights, as our submissions reflect, does not necessarily mean that prosecuting offences, once they have occurred, is far better to prevent those offences occurring in the first place. That is where we would relate back to training, education and perhaps multi-agency support that is provided in the community. How do you think that, if you have any views on how that can be done through the current assistance in place, perhaps through the adult support and protection procedures? I would not have any comments on that at this time, but I certainly could ask if the Law Society might be able to provide further response and writing. I referred back to a colleague who provided evidence earlier on about the wider articles on human rights in relation to that aspect about prevention. It touches on the question of what has been raised already by Mr McCaffer in relation to our approach when a victim does not wish to report a criminal act. I have no wider comment to make other than to say that, in terms of the police activity, our ethics and values will be enshrined within ECHR principles, but in terms of the subject matter that you have raised under that specific question, I do not have any further points to make at this moment. In relation to the adult support and protection aspect, that was discussed in the previous panel and the police role in that. One of our witnesses talked about it being a multi-agency approach. Is there any thoughts on that and how the police can see their view within that framework? The reference to the multi-agency approach has got synergies with the child protection approach in as much as it is a multi-agency approach in which there is an expectation for agencies beyond the parameters of the police to be involved. People talk about a tripartite approach from a child protection perspective in which health and social care health and police would be involved in a wider discussion, but that does not mean that it is constrained by those parameters. There might be wider persons involved in those discussions. In the same from an adult protection perspective, there is an expectation that there would be, in the term, IRD's principles that have been used before in that committee, that position of having an IRD in which various agencies bring relevant information to the matter at hand. That goes back to the point that I made earlier on, that the role that the police is beyond that of the criminal investigation, the role of the police that is highlighted about the vulnerability component, enters into the element of support, protection and prevention. We cannot do that as a standalone agency. We have to recognise that health and social care partnerships, wider agencies have a role to play. My expectation would be that across Scotland, it is not my expectation, it is a matter of... My expectation is that, across Scotland, agencies would be involved on a multi-agency basis to protect adults at risk across our communities. Thank you very much for that answer. I think that it was helpful to get on record. Just one final question. Action for elder abuse Scotland submitted a freedom of information request to Police Scotland and the Crown, Ocarina and Procurator Fiscal in 2016. Our response from both highlighted that neither agency records the age of the victim, and that made it very difficult to gather data on criminal cases involving older people, or to analyse the true extent of criminal prosecutions regarding older people in Scotland. Can Police Scotland and COPF confirm if that is still the case? I am happy to speak from the COPFS perspective in that regard. I am afraid that the evidence in relation to the FOI request was inaccurate. I have recovered the FOI request in question and it illustrates some of the challenges that the committee has heard and explored over the course of this morning's session. The FOI request was not in relation to the ages of the victims. COPFS and Police Scotland record the age, as I have said, of all victims and witnesses that are listed in police reports received by COPFS. However, the FOI request that was received in 2016 was asking a very broad question and a series of subsidiary questions, but the very broad questions that were asked were how many reports were submitted to COPFS by the police in which the harm, neglect or abuse of an older person was a feature. Echoing this morning's discussion, there was no definition of older person and there was no definition with reference to criminal law in relation to offences involving harm, neglect or abuse of an older person. The COPFS response to that FOI request was not that the information was not held, but rather that, in order to obtain the information that is currently asked for or is then asked for in its broadest sense, it would require manual interrogation of individual reports and that manual interrogation was beyond the limit set by the FOI act. I am afraid that— Is there anywhere in recording the age of the victim? That is the question. No, absolutely not. All police reports received by COPFS record the age of every witness in a case, including that of a victim. That is available. It is available. I have already indicated that we can interrogate the database in relation to the ages of persons listed in cases and identified as a victim. Is there a concerted effort now to always make sure that that effort is not available to analyse the extent of the problem? Well again, we would need some certainty in relation to what definitions are being applied and what information has been requested. However, as indicated in the COPFS written submission, information is available with appropriate caveats in relation to the ages of persons reported to COPFS and identified as victims. I think that it would be helpful to see the FOI and the response, and if that could be provided, that would be helpful. And Mr Mackenzie? As I said earlier on, witnesses and victims' ages are recorded. I was unclear of the parameters of the FOI. However, if that is the parameters of the FOI that have been highlighted, I can now understand why Police Scotland could not answer that, because it did not define the age range that we are looking for. It had a broader set of parameters. So I am quite happy to go back and determine what the return for that FOI was. However, if the core question is do Police Scotland record ages of victims and witnesses that are retrievable, my answer to that is that they are certainly recorded. I would lean on the expertise of my APU colleagues to see if they are retrievable, but I would anticipate that the answer would be yes. Could I just ask finally if you think that having that data and the ability to analyse it would be helpful? Yes, it would be helpful provided we… I suppose it would be helpful to understand the core breakdown of individuals' certain age groups that were victims of crime. That might be helpful for that discussion, but the additional information that is required for the wider discussion about elder abuses is to understand whether those victims were vulnerable due to age. That is the point that we would have to understand through a manual check. That is the only reason that you could understand if they were vulnerable through age. I think that if we see the question and answer, that might be helpful. I thank all the witnesses for attending. That is a very useful session. I suspend now to allow the witnesses to leave just for one minute. Agenda item 2 is consideration of whether the Scottish statutory instrument made under the powers conferred and devolved authorities in the European Union withdrawal act 2018 has been laid under the appropriate procedure. The instrument is services of lawyers and lawyers practice, EU exit, Scotland, amendment etc. regulations 2019 draft. I refer members to paper 3, which is a note by the Clarke and paper 4, which is a private paper. The instrument has been laid under the affirmative procedure. The committee will consider the policy content on the instrument at a future meeting. Do members have any comments? Is the committee agreed that the affirmative procedure is the appropriate procedure for this instrument? The Scottish Government has also categorised this instrument as being medium importance. Are members content with that? You are content, thank you. That concludes the public park of today's meeting. Our next meeting will be on 5 March, when we will consider a number of items of subordinate legislation. We now move into private session.