Justice 2 Committee, 30 Sep 2003

Meeting date: Tuesday, September 30, 2003

Official Report 254KB pdf

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Criminal Justice Bill

The next agenda item is on the Criminal Justice Bill that is before the United Kingdom Parliament. I welcome Sharon Grant, Daniel Jamieson and David Cassidy, who are here to assist the minister.

In December of last year, this Parliament considered the bill and agreed to proceed using the Sewel procedure. The minister is here to give evidence to the committee on the bill's progress. I refer members to the note from the clerk and the accompanying Executive memorandum on the bill, which is helpful. I thank the minister for his letter informing me of the background to the Sewel motion, which will go before the Parliament. Do you want to make any introductory remarks, minister?

Yes. The Criminal Justice Bill is a large and complex piece of legislation. Since the Scottish Parliament initially debated the bill on 5 December 2002, there have been developments, which, the Executive believes, require further consideration by the Parliament. That is in keeping with the approach set out in the Executive's memorandum on Sewel procedures to the Procedures Committee on 22 January. Our memorandum on the bill endeavours to give a comprehensive explanation of the new and updated provisions as they affect Scotland, but I will highlight a few of the most important issues. I reiterate the point that I made to Parliament on 5 December that, given that the bill is about the reform of the criminal justice system in England and Wales, it does not impact directly on Scotland, other than in some limited areas, which are specified in the memorandum.

The bill now includes new provisions governing the release of adult mandatory life prisoners in England and Wales, following a recent judgment of the House of Lords, which found the current arrangements under which the Home Secretary fixes the punitive period of life sentences to be non-compliant with the European convention on human rights. To allow such prisoners to continue to be transferred to Scotland on an unrestricted basis, it is proposed that appropriate modifications be made to section 10 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. That will simply allow the existing prisoner transfer regime, prescribed in the Crime (Sentences) Act 1997, to continue to operate with regard to that class of prisoner.

It is also proposed that we take the opportunity to amend an aspect of the Crime (Sentences) Act 1997 to remove an anomaly that has arisen due to the fact that certain provisions under that act in relation to release supervision orders in England and Wales have been repealed. It is desirable to tidy things up to make the necessary changes now.

With regard to the transfer of suspended sentence orders, community sentences and custody-plus orders to Scotland, the provisions in the bill that impact on Scotland relate to the arrangements that are necessary to allow the individuals to transfer to Scotland where appropriate. As with the transfer of adult life mandatory prisoners, the provisions that are proposed will allow the current transfer regime to continue to operate not automatically, but where it is appropriate for an individual to move to Scotland. Of course, in all those areas, reciprocal arrangements are in place where it is thought appropriate for an individual in Scotland to transfer to another part of the United Kingdom.

On reporting restrictions, some of the amended provisions update arrangements in existing legislation to take account of the amendments to procedure made by the bill. Others reflect small changes to provisions in legislation that were agreed by the Scottish Parliament last year, but they do not alter the principle behind the provisions or the way in which they will apply to Scotland. The overall purpose of the restrictions is to ensure that matters that might be prejudicial to on-going proceedings are not reported before it is appropriate.

Although we are not moving the Sewel motion today, I hope that the committee will agree that the provisions in the bill that apply to Scotland are sensible and worthy of inclusion as part of the overall package of measures. I think that the provisions can be characterised in the main as being designed to allow current reciprocal cross-border arrangements to be maintained and updated to take account of the reforms that are included in the bill.

Thank you, minister, for that helpful explanation.

Paragraph 36 of the memorandum says that, in relation to reporting restrictions on retrials for serious offences, no new issues of substance are raised by changes to the bill. However, one of the changes referred to on page 3 is, in effect, the creation of a new offence in Scots law for breach of those reporting restrictions. That may be quite technical, but it is an offence that does not currently exist. Is not that a matter of substance that the Scottish Parliament ought to scrutinise?

I would not argue that it is a matter of substance. You are referring to retrials and that would apply to England and Wales but not to Scotland.

I am not referring to the substantive issue of retrial. I am referring to the reporting restrictions in such cases.

If there is a breach of those restrictions in Scotland, there would be a new offence in Scotland under the bill.

There are currently circumstances in which it would be an offence in Scotland to report on trials in England in Wales. Similarly, there are certain circumstances in which reporting in England and Wales on procedures in Scotland would be an offence. I do not believe that the substance has changed. The issue is specifically to do with retrial and the introduction of a new offence, but it is not my understanding that there is a change in principle.

That is correct. With regard to retrial for serious offences, the reporting restrictions that were initially proposed in the bill, which made it an offence to report in Scotland, were altered as the bill proceeded, because provisions were no longer made automatically. Instead of there being an automatic statutory offence, the reporting restrictions were to be made at the discretion of the Court of Appeal. However, the English Court of Appeal does not have jurisdiction in Scotland. The proposal is to reinsert in the bill the statutory offence provisions as they were when it was printed, to take account of the fact that the Court of Appeal in England does not have jurisdiction in Scotland.

I understand the reason for doing that. I am simply making the point of principle that a new offence in Scots law is being created. It may be very similar to offences that already exist, but when we create a new offence in Scots law the Scottish Parliament should have a greater opportunity to scrutinise that than is afforded by a Sewel motion. I am sure that we could debate that point all afternoon without reaching agreement, so I will not press it.

The minister has endeavoured to respond to your question as best he can.

My question relates directly to the substantive issue raised by Nicola Sturgeon. From paragraph 8 of the memorandum, I was not sure which court in Scotland was intended to deal with reporting restrictions. In England, the Court of Appeal will be responsible for that, but what will be considered the competent criminal court in Scotland?

The offence would be prosecuted in an appropriate court, depending on the view of the procurator fiscal to whom it was reported and, ultimately, the Lord Advocate. The initial order that introduces the restriction is a matter for the English courts.

So it will be left to the discretion of the Lord Advocate to decide which criminal court in Scotland has the right to determine whether there has been a breach and, if there has been a breach, what should happen.

The changes that have been made to the bill will create a situation in which the English court will decide whether there is to be a reporting restriction. Applying that restriction will trigger a provision in the act that makes breach of the restriction a criminal offence. That offence will apply UK-wide. If there is a breach in Scotland, it will be prosecuted in the usual way in Scotland.

How seriously would such a breach be regarded? Would it be prosecuted in the sheriff court or would it be a High Court matter?

The fine would be a level 5 fine—a fine of £5,000.

That is the maximum fine on the standard scale, which indicates the seriousness of the offence.

You have answered my question, which was about the penalties for the offence. You have said what the fine will be. Is the level of the fine laid down in the bill or is it determined elsewhere?

The level of fine is not indicated in the bill at the moment, but an amendment to that effect will be made.

I would like to ask a couple of technical questions about restricted and unrestricted transfers. Is someone who is serving a minimum term in England susceptible to earlier release or must they serve the minimum term before making an application? If prisoners serving a minimum-term sentence in England are transferred to Scotland, where there is no minimum term but where sentencing provision includes a punishment part, will they be treated with the same robustness in Scotland as in England?

As far as I am aware, they will. I can confirm that to you in writing.

We understand that that is the case, but we will clarify the matter for you.

I understand that in England people must serve the minimum term before applying for parole, whereas in Scotland they may be susceptible to earlier release under the punishment part of the sentence. Does anyone know the answer to my question?

We will clarify the matter for you. We do not intend to allow the situation that you describe to happen.

Scotland would not welcome the prospect of prisoners from England coming up here because it looked a better bet for sentencing.

That would not be the case. Only a small number of transfers to Scotland take place and that is almost balanced by transfers to England. A case must be made for transfers; they are not automatic. Determinations must be made on the basis of circumstances, such as the ties and background of prisoners. The proposal is not that someone who thinks that there is a softer option in either jurisdiction should be able to decamp.

It rather depends on the overall framework for sentencing in Scotland.

If an offender is transferred on an unrestricted basis to Scotland, they become subject to the laws of Scotland.

Indeed, and we do not have minimum-term sentences.

I will confirm with you that such offenders will be subject to the same release and supervision arrangements.

Okay. My final question to the minister is on the proposed repeal of the supervised release order provision. I notice that the provision was introduced in 1995 to protect the public from serious harm. The provision was intended to operate with release supervision orders in England and Wales, but those orders in fact never went ahead. From a Scottish standpoint, I am slightly troubled as to whether repeal is sensible. The policy memorandum to the Westminster bill says that repeal will

"not significantly affect the powers of the Scottish Ministers".

From that I infer that repeal would affect the powers of the Scottish ministers to some extent. How will it affect their powers?

My understanding is that supervised release orders would still be in force in Scotland in relation to violent offenders.

In Scotland, supervised release orders are still in force under the Criminal Procedure (Scotland) Act 1995 for violent offenders or offenders who might pose a risk to the public. We talk about violent offenders because sex offenders are treated differently.

The Westminster bill will repeal the provision that allows a person coming to Scotland on an unrestricted basis to be treated as if they were on a supervised release order. There are two reasons why we think that that provision should be repealed. If an offender comes to Scotland and is treated as if they were subject to a supervised release order, they may be at a disadvantage—they may not be a violent offender but would be treated as if they were. That would mean that, if they breached their order, they would go back to court and subsequently be imprisoned for a term of up to about 12 months for that breach. The original offence may not have put them into the category of violent offender or offender who might be a risk to the public.

The provision was put in place to mirror in Scotland the release supervision orders in England and Wales and to allow reciprocal transfer arrangements with both types of order. However, now that release supervision orders do not exist in England and Wales, there is no need for ministers to have the power to treat offenders who travel north as if they were subject to supervised release orders.

Minister, are you satisfied that the repeal of that provision will not affect public safety?

Absolutely.

As there are no further questions, I thank the minister very much for dealing with our inquiries.

Having listened to the minister and his advisers on the issue, I remind members that there is no formal procedure for consideration of Sewel motions in committee. We can report our conclusions to the Parliament in advance of the motion being debated by the Parliament in October. Do members have any specific comments that they would like to be included in the report to Parliament? I suggest that we ask the minister to confirm the point at issue on the different treatment of sentencing in Scotland and England. That is fairly important to our considerations. Subject to that, are members content with what is being proposed?

Members indicated agreement.

I thank the minister and his officials for their help. Some of the officials will leave now, but the minister will remain tightly adhered to his seat for the next agenda item.

Convener, you are aware, of course, that there is a football match on tonight.

Do you think that you are getting to it?

Given the majority presence on the committee, minister, you are on dangerous ground.

Aye.