Item 4 is continued consideration of the Criminal Justice and Licensing (Scotland) Bill. The evidence taken today will build on the evidence taken on parts 1 to 7 of the bill.
I agree substantially with that view. I read with interest the evidence that the Lord Justice General and the Lord Justice Clerk gave to the committee on a previous occasion. They were clearly concerned about the independence of the appeal court in respect of its ability to set the sentencing guidelines that currently operate for everyone who practises in the courts. They also questioned the necessity of having another body, which would be unelected, to provide guidelines. As far as I can see, there are clear difficulties with that.
Thank you. That is very clear.
I agree, in principle, with what Mr Duguid has said. We are concerned to understand what is meant by consistency in sentencing. Two apparently similar cases may attract different sentences for reasons that are particular to those cases; that is the difficulty in applying strict guidelines. The question is whether we want uniform sentences or consistent sentences—and what is meant by consistent sentences. It seems to me that such matters are not properly dealt with in the bill.
You have anticipated what I was going to ask. Could there be local circumstances in which sentencing disparity was appropriate?
Absolutely. It is crucial that, in some places, judges have regard to local circumstances in passing sentence.
Do you adopt that argument, Mr Duguid?
I understand the reasoning for it, and I can think of some examples of local circumstances calling for different courses of action, but it is a difficult matter to reconcile. Fundamentally, people do not want to be treated differently in one part of the country from how they are treated in another part of the country. If there is a fundamental basis for the sentencing, the refining of the sentence can take into account local circumstances—I do not have any difficulty with that—but the creation of differences in sentencing and perhaps even a sentencing commission providing for different local circumstances is not a course that I would endorse.
I want to challenge Mr Duguid on the idea that dangerous driving on the A9 is different from dangerous driving on the streets of Edinburgh. It is either dangerous driving or driving without due care and attention—or any other form of words that you would care to come up with—or it is not. That offence will have its own local context in terms of how fast drivers should be going and how much traffic there is around them, but if it is the same basic offence why should it attract a higher penalty on the A9 than in the suburbs of Edinburgh?
I am giving you my answer from anecdotal evidence. There has been a recognition that speeding occurs on the A9 and that, notwithstanding the fact that speeding can constitute dangerous driving, speeding in itself should be curbed to a significant extent on that road. The question is whether the penalties that are given in the sheriff courts in Perth and Inverness should be higher than those that are given in Edinburgh. Of course I do not want to suggest that speed is speed and dangerous driving is dangerous driving, but there is anecdotal evidence that the penalties that are imposed notoriously reflect the number of fatalities on the stretch of road—and that is certainly the case in my experience.
I am quite prepared to believe that that is the case and that research would demonstrate it—we do not need to do the research—but I am still not sure that I could defend it as a matter of policy or principle.
I was not trying to defend it—
Forgive me for interrupting, but if we want to reduce the speed on the A9 we should do it through road engineering or any number of other mechanisms, and not by saying, "If you get caught, the penalty will be higher."
I do not think that we disagree about that. What I am saying is that local circumstances are reflected in the imposition of penalties. That is a fact. If you are asking me whether I endorse that principle, my answer is that the fundamental principle of dealing with dangerous driving is that everyone should face the same penalty, but if local sheriffs deal with local circumstances by imposing harsher penalties, that is a matter for them. They can choose to use the discretion that they have. Do the sheriffs in Edinburgh choose to exercise their discretion in the same way as sheriffs elsewhere? The anecdotal evidence is that they do not, but that does not alter the basic proposition that dangerous driving is an offence that carries the same penalty throughout the nation.
Surely that brings us to the nub of the matter. If sheriffs in Perthshire, Aberdeenshire or wherever take different views—I am still not sure whether you think that that would be a good or a bad thing, but you are not on trial—surely that is wrong. Surely, in principle, the penalty for the offence should be the same throughout the country, albeit that the similarity of offences on different stretches of road might be difficult to measure. Is that not what equity and fairness are about?
The answer is yes. I think that the question that we started off with was, "Should account be taken of local circumstances in setting guidelines?" I broadly disagree with that as a principle, but I recognise that local circumstances are reflected every day in the sentences that judges impose. I am talking about sheriffs dealing with their different localities.
I am not necessarily following the line of Nigel Don's argument, but I have a question for Mr McVicar, who defended the discretion of individual sheriffs. Glasgow and Edinburgh sheriff courts have a number of different sheriffs and the different decisions that they make have an effect on whether people plead guilty at certain stages and so on, so the matter is a significant public issue. Do you have a view on how that should be tackled? Would the sentencing council approach, whether it was advisory or of the nature that the Government proposes, be a possible way forward?
I am not sure that a sentencing council and guidelines would necessarily deal with the matter. Every judge who imposes a sentence in a case has discretion. Unless we move to a system of mandatory sentences, it will always be possible for a problem to arise between different sheriffs in the same building.
Gentlemen, you have made your views on the sentencing council clear. If, at the end of the day, it was the will of Parliament that such a council should be imposed, what changes would you suggest that might be beneficial?
With regard to the current proposals, I agree with what the Lord Justice General said about the need for a greater number of judicial members on the council, with a view to drawing on the greater experience of those who are involved in the sentencing process. As a practitioner of the imposition of sentences, that is the principal change for which I would argue.
Do you adopt those arguments, Mr Duguid?
Yes, I agree with that view. The Law Society's submission identified the question of whether a member of the constabulary counted as a legally qualified person to sit on the council, but that is perhaps a matter of drafting. An issue of more general interest is whether a member of the constabulary should have any place on a sentencing body. Apart from those details, I broadly agree with the Law Society's submissions.
Having dealt with the qualities of the constabulary and the issue of sheriff shopping, we turn to serious organised crime, which Paul Martin will deal with.
Good morning, gentlemen. Are the new offences of involvement in and direction of serious organised crime necessary, given that people can already be prosecuted for conspiring to commit crime or inciting others to commit a crime?
No, those provisions are not really necessary; I am not sure that they will add anything to the criminal justice system. We had a brief discussion before today's meeting about the supply of controlled drugs—or drug dealing, as some people refer to it—and we were questioning whether almost every supply of drugs has involvement in serious organised crime as its end result. The supply of drugs is in a sense simply perpetuating an organisation that is both serious and organised, and it is a serious crime.
Why do you think the Government has introduced those provisions? Have you picked up on anything that clarifies its reasons? The reasons must exist: the Government would surely not want to add to the current legal remedies unless something required it to do so.
One of the most interesting features of the provisions is that involvement in serious organised crime will carry a maximum sentence of 10 years, whereas directing serious organised crime will carry a maximum sentence of 14 years. One therefore assumes that the bill's drafters were concerned that persons who are in some way remote from involvement need to be picked up by the criminal law. I whole-heartedly agree with that proposition. If the bill's aim is to get to the bigger perpetrators and to the people who direct involvement while remaining at arm's length from crime, I wholly endorse it.
Do the other witnesses want to add to those comments?
I presume that the Government is attempting to draw attention to its concerns about serious organised crime. The common law would probably deal with most of the matters that are covered in sections 25 to 28.
The witnesses may take it as a compliment when I say that between them they have decades of experience in law. How would you define "serious organised crime"?
Is that a question of which the witnesses would have preferred prior notice?
What would the witnesses say is or is not serious organised crime?
The definition in section 25 appears reasonable, in that it draws attention to the fact that certain activities that go on should be regarded as more serious for future purposes. I suppose that the definition will cover activities such as drug dealing and people smuggling—although that is covered under different legislation—and the organisation of bank robberies, for example. The definition is fairly wide.
Is the definition not as focused as it should be? Will it catch individuals who should not be caught? We heard about challenges in that regard during last week's meeting. For example, the Sheriffs Association suggested that two people who agreed to steal a meat pie would commit an offence that fell within the scope of the bill. Do you agree?
I certainly think that the definition of "serious offence" as an indictable offence that is
So you recognise that, as drafted, the legislation could result in the theft of a meat pie being categorised as a serious offence.
As it stands, section 25 could be interpreted in that way.
So the wording needs to be improved.
I think that it has to be looked at.
Do you have any views on the matter, Mr Duguid?
I have to say that, after looking at the bill's definition of serious offence and its reference to "material benefit", I am not sure that they cover, for example, a recent High Court case that I was involved in that involved eight paedophiles. That case was charged as a conspiracy, and one could not say that the offence itself was neither serious nor organised. The prosecution's case was extremely well investigated, presented and prosecuted, and it secured the conviction of people whose offence one would think should fall under the definition of serious organised crime. They were, after all, a group of paedophiles who were in contact with one another. I am simply not sure whether the aggravation set out in section 25 would really meet the case in which those individuals were involved.
Do you therefore acknowledge that, although politicians talk about wanting to challenge serious organised crime, the fact is that we do not actually know what we mean by the phrase? The public and political view is that it is all to do with the Mr Bigs in the criminal underworld, but our challenge is to define the offence to ensure that we deal with those individuals.
I absolutely and fully appreciate the difficulties that you face. After all, you are the lawmakers: you pass the legislation and the courts simply apply the provisions. I also realise that it is difficult for drafters to include within a definition everything that can be envisaged, but you should ask yourself whether the common law already deals adequately and properly with these situations and whether, in that case, we require a statute that in some way restricts what should fall within the definition of serious organised crime.
What are your views on the concerns expressed by High Court judges and the Sheriffs Association about the potentially very wide scope of the proposed offence of failing to report serious organised crime?
I share those concerns. Anyone who reads the press will know what such an offence might cover. It might, for example, cover the relatives of those charged with the terrorist offences prosecuted in London because they withheld information about the individuals' whereabouts and the plans. However, I do not know whether, under this widely framed offence, other persons whose involvement might be more difficult to define are at risk of being prosecuted for something of that nature.
On section 28, Mr McVicar referred earlier to the possibility of a challenge under article 8 of ECHR with regard to the individual's right to privacy. We cited the German case of Niemietz v Germany and I note a reference in section 28(1)(b) to
I suggest that someone is committing the cardinal sin of having their mobile phone switched on. Could we all ensure that our phones are off?
Section 34 of the bill would make it an offence for a person to be in possession of extreme pornographic images. Do the witnesses have any concerns about the scope of the provisions?
Our only concern is that there may be unintended consequences for what some people might regard as works of art. We suggest that it is necessary to clarify further the extent to which the definition will operate. Beyond that, we have nothing adverse to say about the proposal.
That point has been raised by other witnesses, so we will pursue it.
I have no concerns over and above those that have already been expressed.
The committee is aware that there has been consultation on how the law should deal with computer-generated images, cartoons and drawings that graphically depict children in a sexually abusive way. Should any future proposals to deal with that type of child pornography be extended to extreme adult pornography?
I am not sure that there is any great concern about that. Section 52 of the Civic Government (Scotland) Act 1982 deals with images, including what are, I think, described as pseudo-images in cartoon form and constructed in the way that you describe. The law recognises that at present.
I agree with Mr Duguid.
We now turn to witness anonymity orders.
Section 66 of the bill will allow judges, in appropriate cases, to order the use of measures to protect the anonymity of witnesses who give evidence in court. Does the Law Society or the Faculty of Advocates have any concerns about the practicality of the proposals or their compatibility with the right to a fair trial?
If I am correct, I was initially asked about this some months ago. There was concern that an accused person is generally entitled to see his accuser and to hear the accusations that are being made against him. I offered the view that there is legislation to protect the position of vulnerable witnesses to a substantial extent. I went through the provisions in some detail: safeguards seem to be provided in section 66 against abuse of an anonymity order, which is what a lawyer's concern would be. I have to say that the drafting of the provisions is thorough, as far as I can see. The prosecution of sexual offences is a thorny issue. I fully recognise that provisions for vulnerable witnesses give some protection to persons who claim to be victims. Abuse of anonymity orders is unlikely, given the various safeguards and I accept that there must be limited circumstances in which such orders will be required for a witness to give evidence. The drafting provides sufficient safeguards and I do not have any major concerns about abuse of anonymity orders.
That is very clear.
Our concern related to proposed new section 271N(4)(c) of the Criminal Procedure (Scotland) Act 1995, which says "that the witness" should not be
Is that a continuing worry for you.
It is a concern that we mentioned in our written submission and which I mention now with particular reference to proposed new section 271N(4)(c). It might be that if we sat and thought about it more a few other bits and pieces would arise, but the concern might be met by the fact that the court would then prevent the trial from proceeding further if it were based to a fundamental extent on that witness's evidence.
So there is possibly a need for amendment of that provision.
There is, but I do not know how one would go about it. We will be asked to think about amendments later on.
Indeed—that is why I asked you the question in that particular fashion. There is a possible need for amendment.
Yes.
That is clear. Thank you.
We will follow that up in due course. Nigel Don will now ask about disclosure of evidence.
Gentlemen, I wonder whether we can start not with disclosure of evidence as such, but with defence statements and their mandatory nature or otherwise in solemn cases. The Law Society has indicated clearly that it is against them; does Ian Duguid have any comments to make?
I am very much against defence statements.
Do you feel a need to expand on that?
If I understand correctly, the committee that was chaired by Lord Coulsfield, from whom you will no doubt hear more today, did not recommend that defence statements be introduced. They are a concept that is particular to the law of England and Wales and are required there because they do not have the procedures that we have: for example, if it is planned that a special defence will be advanced in the course of a trial, it is required that that be intimated to the prosecution 14 days before the preliminary hearing. The defence statement provision relates to that very same requirement. If it is suggested that a defence such as self-defence, alibi or incrimination will be promoted, notice is required. Our procedures include a preliminary hearing at which the admissibility of evidence is addressed.
I think that that is the logic.
That situation should not arise under the present system. As I said, the system requires notification of a special defence and the holding of preliminary hearings, which do not apply in England and Wales. We can see why the idea was thought to be good for England and Wales, although Lord Coulsfield says that the statements have been found in general to be "late, unspecific and unhelpful."
Thank you for distinguishing eloquently between the two legal systems.
I understand that Lord Coulsfield proposed a relatively informal process of including information on schedules and inviting lawyers to consider whether they would want as a matter of right to see further information that had not been disclosed. However, the provisions in the bill are terribly complicated and they might—unfortunately—complicate the system more than is necessary. The bill adopts more or less wholesale an English system that does not necessarily sit well with our procedures. That is not a criticism of the English system—the English do things differently from us—but that system would not fit terribly well with our procedures. I do not know whether the proposed special counsel system for hiding information from the defence—that is what it will come down to if the rules are enacted—is compatible with human rights.
Does the Law Society or the Faculty of Advocates have other concerns on the law of disclosure?
No. I recognise that some provisions are necessary. Special counsel, which deals with public interest immunity, is, in a sense, an import from England. I recognise that the matter will have to be addressed in some shape or form. However, there are some questions. Are the proposals balanced? Do they take account of the need for disclosure, which—in statutory form—is appreciated and recognised? Also, are there enough safeguards for withholding of information? Clearly, there will be situations when the information will have to be withheld in the public interest. Some framework has to be provided for that situation.
I am sure that we will hear a lot more about that.
I am totally against those provisions. Members of the constabulary are concerned about the onus that will be placed on them in taking statements. One probably has to be in practice in our courts to appreciate the frequency with which witness statements are placed in front of witnesses, either because they have forgotten that they gave one and want to see it again, or because they are giving evidence that is different from what is in the statement. Establishing whether the police officer noted correctly the statement can become a challenge.
You have made an excellent case for the defence. Thank you.
I did not mean to.
There is no need to go any further. You do not need to oversell a good case.
I respectfully agree with what Mr Duguid says. I also refer you to what the judges say in paragraphs 43 and 44 of their written submission:
I think that that is the practicality of it. The final question is on unfitness for trial.
Although the written submission from the Law Society generally welcomes the provisions on mental disorder and unfitness for trial, it suggests some changes, including that a volitional test be added to the cognitive test. What changes would you like to be made and why?
Rather than unfitness for trial, we are talking about the defence that is presently described as insanity. We suggest that the definition in the bill is too narrow. As our written submission states:
I agree with the Law Society's suggestion and I note that the Mental Welfare Commission for Scotland makes a similar point in its written submission.
I cannot remember what the question was.
In essence, I am saying that individuals with the sole diagnosis of a psychopathic personality disorder could not claim the defence of having a mental disorder, but people with other personality disorders could claim that defence. Do you, as legal practitioners, have any issues with that?
I recognise that I have no expertise in that matter. I do not think that I have any expertise in it beyond that which members of the committee have. As Mr McVicar said, experience suggests that the law and mental health are difficult to reconcile. I suppose that in the defence of serious crimes, one investigates individuals with mental illnesses, mental disorders and personality disorders. In many ways, practitioners are guided by what the experts say, and I do not think that anyone involved in the law ever tries to intrude on their expertise.
Okay. Perhaps I should ask a more specific legal question.
Examples must be given if the definition is to be enhanced. If the examples are not exhaustive—if you ask any expert, I think you will find that they will not be—it becomes difficult to expand on that definition.
Thank you. I understand.
Have you anything to add, Mr McVicar?
Not that I could properly set out in comprehensible language.
As there seem to be no further questions for this panel of witnesses, I thank the gentlemen very much indeed for their attendance. That was a very useful session.
Meeting suspended.
On resuming—
Our second panel of witnesses comprises Professor Jim Fraser, who is the director of the centre for forensic science at the University of Strathclyde, and Tom Nelson, who is the director of forensic services with the Scottish Police Services Authority. I should mention by means of introduction that, at the request of the Scottish Government, Professor Fraser reviewed and reported on the operation and effectiveness of Scotland's statutory regime governing the acquisition and retention of DNA and fingerprint data. He reported in July last year.
Good morning, gentlemen. In light of the ruling by the European Court of Human Rights in the case of S and Marper v the United Kingdom, do the proposals in the bill on the retention of fingerprint and DNA data achieve an appropriate balance between law enforcement and the rights of individuals?
Yes, I think they do. The main issue relates to the retention of samples from unconvicted people. Proportionality is a tricky issue, because there are not many data to allow detailed analysis. However, when I considered the three-year period, the available data showed that a considerable number of people reoffended during the period. That was a fairly short period, and the study related to serious offences, so the retention struck me as reasonable and balanced.
Even in cases in which people were prosecuted but not convicted?
Yes. The situation seems to conform with S and Marper. The issue in England and Wales was not so much about the right to retain the data of someone who was unconvicted as about the right to retain the data indefinitely. The UK Government argued that the evidence base gave it the right to retain data indefinitely, but that argument was rejected by the European court.
And any extension would have to be agreed by a sheriff, rather like what happens with a risk of sexual harm order. Is that a fair comparison?
A chief constable has the right to ask a sheriff, on the basis of evidence, for an extension of two years. That is a recurrent right; the chief constable can go back and ask for it again. The key point is that there is a legal process, so there is an expectation that evidence will be presented and independently assessed. Those things were missing in S and Marper.
I agree with Professor Fraser. The way forward that is being proposed for Scotland is supported by what is coming out of the European court. Scotland is held in very high regard because of how we manage and retain samples on the database. I do not think that we have any fears in that area.
Thank you for those clear answers.
Good morning, gentlemen. What is your view of the difference between people who have committed an offence and been sent to jail, and whose DNA has been retained, and people who have accepted an alternative to prosecution, such as a fiscal fine, and whose DNA has not been retained?
I did not form a strong view on that; from recollection, it was not part of my terms of reference. The issue of direct disposals came up, and was referred to in my report, but I did not feel that I had the data to make any real sense of that. It strikes me that the purpose of such disposals is the speedy administration of justice. That purpose had not previously taken DNA into account, and I felt that the issue merited more research and more consideration, so I did not express a view.
Again, I agree with Jim Fraser. An opportunity may have been missed; we need to be careful, and more work is needed. If more cases take the road of alternatives to prosecution, I will be concerned about losing opportunities to get people's DNA profile and check it against the DNA database. A lot more work needs to be done in this area.
Do you mean that a lot more work needs to be done to prove the case for retention? Do you accept that it is illogical that DNA is retained in some cases but not in others?
I honestly believe that, if we do not have the opportunity to check against the DNA database samples from cases that are dealt with by fixed-penalty notices and fiscal fines, we will miss the opportunity to get matches on the database. We need to view that as a risk to our system.
For the uninitiated, can you indicate the cost of taking and storing a DNA sample?
There is a cost, but I do not have the figure to hand. It includes the cost of police involvement and the purchase of the swab. At our laboratory in Dundee, there are up to 30 freezers full of samples, so storing samples in the most appropriate way is a significant issue.
I will pursue the matter in a different direction.
I want to return to the previous question and to relate it to the issue of fighting and preventing crime. Mr Nelson, did you make the point that we have an opportunity to prevent individuals who are subject to fiscal fines from committing violent crimes at a later stage?
That is the point that I hoped to make. At the end of the day, we know that people have a career in criminal activity. The more intervention we can have earlier on, the better we can assist those individuals, so that they do not become repeat or recidivist offenders. We have an opportunity to help people at an earlier stage.
Politicians say that they want to get tough on crime and the causes of crime, and to prevent crime. You are suggesting that, by retaining more samples, we could prevent some crimes from taking place in the first place and save resources in the long term.
We must look at both sides. We also need to support the people concerned, to help them to leave the career path that they are on. However, if we do not have their samples on a database, we will not be able to detect their involvement in crimes and the public's fear of crime will increase.
Some concerns have been expressed about the proposal to allow the retention of fingerprint and DNA data from children who are dealt with through the children's hearings system. Why should samples from children who have not been prosecuted in the criminal courts be retained?
I was asked specifically to look at that issue, which is complex. It is made especially complex by the particular status of children's hearings, which are not criminal hearings. Nonetheless, I was asked to consider whether there was potential benefit in taking samples from children.
I support Jim Fraser's words. We cannot get away from the fact that, although only a small number of people are involved, some within that age group will commit serious offences. The statistics from the database show that those who are aged 17 and under account for just over 3 per cent of the database entries but are responsible for 15 per cent of crime scene matches. They account for a very small percentage, but they are obviously active.
For clarity, let me summarise the points that have been made. The data would be retained to identify people at an earlier stage of their criminal career both to prevent that criminal behaviour from continuing and to protect the public, who could be affected by that behaviour in the longer term. Is that a fair reflection of what has been said?
Let me just add one point. Tom Nelson referred to matches, which are the measured outputs from the database. However, there are some subtleties of interpretation in deciding whether a match becomes a detection and then a conviction. It is important that the data are seen for what they are. A match will not necessarily lead to the resolution of a criminal offence or to someone being convicted in court. However, I accept that general argument as a good summary.
Taking the slightly opposite end of that argument, I want to ask whether Professor Fraser believes that the stamping of children as criminals by their DNA is actually a good thing. The background to my question is that the definition in proposed new section 18B(6) of the 1995 act—which section 59 of the bill would insert—refers to
My intention in the recommendations was certainly not that a punch on the nose would ever merit sampling. I very much tried to identify those children who not only had committed violent or sexual offences but might go on to commit further offences. That brings in the issue of public protection. However, I do not think that such children would be stigmatised or criminalised by the retention of their DNA. If they were criminalised, the judgment would be made either by the children's panel or by a sheriff. The DNA sample would be taken after that and would be retained only in certain cases. Again, I think that the argument comes down to the numbers involved and the proportionality of the measures.
You made a number of recommendations in your report that did not require legislation. For example, you made suggestions about governance arrangements for fingerprint and DNA databases. What progress has been made in implementing those recommendations?
I can speak only generally on that issue. I only know that a committee has been formed to consider governance arrangements and how the outputs from the database can be measured. Tom Nelson might be in a better position to reply.
The committee has been set up. Its first meeting will be in June, and it will consider governance and reporting and how we can meet the standards in James Fraser's report.
As there are no further questions, I thank you for your attendance, gentlemen. The session has been brief but valuable.
Meeting suspended.
On resuming—
Our next witness is the right hon Lord Coulsfield. The issue of disclosure has caused some excitement in Scottish legal circles, Lord Coulsfield is the author of the "Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland", which has been of great assistance to us.
As I hope you might have gathered from my written submission, I do not criticise the general approach of the bill in most areas, but I am extremely concerned about the way in which it has been drafted, particularly with regard to the length and complication of proceedings.
Suppose the bill was passed in its present form. Could you conceive of difficulties in respect of appeals to the court of criminal appeal and, possibly, to Europe on the basis that the wording did not make the obligation clear?
I am not sure that I can envisage appeals to Europe, but I can certainly envisage a lot of procedural wrangling at the preliminary and, perhaps, trial stages of cases in Scotland.
The provisions seem to be a trifle convoluted. Is there scope for making them simpler, so that they can be more readily understood and the administrative wrangles that you mention can be avoided? For example, could the terminology that is used for the various types of orders—non-disclosure, exclusion and non-notification—be improved upon, and could some of the detail in that part of the bill be dealt with elsewhere in the bill?
It could certainly be dealt with elsewhere; my view is that a lot of it should not be in the bill at all.
Robert Brown has a question, although, to an extent, you have anticipated it.
You have made it clear that the present provisions are extremely elaborate. That is emphasised by the fact that part 6 runs to 15 pages. You have suggested that a code of practice would be a better way of tackling disclosure. Do you envisage taking most of part 6 out of the bill and replacing it with your statement of principle and a reference to the code of practice?
What I suggested in my submission is not necessarily a fully considered piece of drafting, but it sets out what I regard to be the essential principle that must be included in the bill. If that principle is set out, I do not think that sections 85 to 90 are necessary. They could be replaced by one or possibly two fairly short and simple sections.
There has been a bit of coming and going on defence statements, on which the Government takes a different approach. Do you retain the view that, in most cases, defence statements are not advantageous from the point of view of equity and fairness? If so, how do you anticipate the provisions on defence statements operating in practice if they remain mandatory? What difficulties do you envisage that causing?
I have not heard any argument that has led me to change the view that I expressed in my report, which is that defence statements are unnecessary in our procedure. Mr Duguid talked about the disadvantage of what is proposed and I think that, essentially, I agree with what he said. The defence statement provisions will add an extra stage of work and expense.
There would also be a loss of focus on what it is all about.
Yes.
Are you saying that the Bonomy reforms should be left as they are?
I have not had the occasion to think about whether the Bonomy reforms as such need to be changed. The issue goes further back than Bonomy, of course. As Mr Duguid or Mr McVicar said, from a very early date Scottish procedure has required certain defences to be stated in advance of a trial as special defences: insanity, alibi, mental disturbance, self defence and so on. England never had any such requirement, and books about English criminal procedure are always talking about the problem of ambush defences—for example, when the defence suddenly produces a witness who says, "The accused wasn't there", and the prosecution has had no notice of that. In so far as the defence statement procedure has any benefit in England, it is as a means of catching up with the arrangements that we have had for centuries in requiring certain defences to be specified.
Are the proposed procedures on non-notification orders compatible with ECHR?
With any luck, we will have a much clearer idea about that by the end of the month. In March, the House of Lords in England heard a case that is concerned not with criminal prosecutions but with control orders under terrorism legislation, under which there is a procedure for the use of special counsel to consider information that is thought not to be suitable for public disclosure. The bill envisages the same sort of procedure, and the same sort of problem might arise. Special counsel were employed in the case and the Court of Appeal, by divided decision—two to one—held that the use of special counsel was compatible with ECHR article 6. The decision was appealed to the Lords, and a decision is expected in the next two or three weeks—I made an effort to get a hint of what the decision might be, but I am afraid that I was not successful.
Perhaps we should wait, too.
The issue has been highly controversial and has generated a great amount of academic writing as well as discussion in court decisions. Widely differing views have been held.
At our meeting last week, witnesses from ACPOS put forward a strong case that the proposed disclosure regime will create an enormous additional workload and told us how many extra officers or non-uniformed staff would have to be set aside to deal with each case. You suggested that you did not agree with that view. Is there a difference between what the police currently do and what they would have to do under the new regime? Would there be an additional workload? If so, can it be quantified?
I do not believe that the passing of the legislation will increase the workload. I hope that, with the passage of time, the legislation and the practice under it will reduce the workload or at least make it easier for the police—as they get into the work and get the appropriate training—to perform their duties.
Last week, we heard evidence from the police that, when such a system was introduced in England, it led to an exponential increase in the workload of police officers and forces that are involved in investigations. Why are the police arguing that the workload will increase? You said that you do not agree.
There was a massive increase in the English workload, but not because of the system that was introduced. The increase was due to the decisions in three European cases, which told the police that they had to ascertain, record and report the information. I do not deny that there was a massive increase in the workload in England, as there has been in Scotland. I have every sympathy with the police when they complain about the burdens on them and the difficulty of performing their duties, but those burdens arise as a result of the interpretation of the requirements of article 6 by the European Court. I will qualify that. We tend to blame the European convention on human rights for a lot of things, but as I think I said earlier, under modern conditions the courts and Parliament have to face up to the question of how to secure a fair trial, given the nature and quantity of the information that is involved in a major investigation, and it is difficult to see how that could be done without a considerable investment of time, energy and money by the police.
Is it fair to say that the bill just provides a framework for what is supposed to happen?
Yes. As I said, I do not think that the bill is particularly good at providing a clear framework and I would like it to be improved, but the idea is certainly to provide a structure. The police accept that they will have to do what is proposed. If the structure works and police officers are properly trained, that should improve the police's capacity to deal with the burdens that certainly arise as a result of the disclosure requirements.
Earlier, we heard evidence from Mr Duguid about the quality of the witness statements that the police prepare and provide. Should we consider using information technology more effectively and perhaps using audio or video recording to improve the quality of witness statements?
I could talk for quite a long time about statements and the way in which modern practice has made them much more important than they were when I started in practice in 1960. Criminal practice has changed since I first appeared in the criminal courts, which was prior to criminal legal aid. For my first case, I got a copy of the indictment just before I got on the train to Glasgow and I saw my client when I arrived at the High Court; we then went into court and started the trial. Statements were virtually unknown then and it was certainly unknown for people to be referred to them. The assumption then was that we assembled our witnesses and went in, and what mattered was what the witnesses said at the trial. However, practice has changed materially since then.
But the quality of information that the police provide could be improved. We live in a video age, with YouTube and so on.
One of the ways of improving the quality of police information is by placing more emphasis on something that is already part of police training, which is that—I think that somebody referred to this earlier—they should, so far as possible, write down the witness's actual words. I rather doubt whether video recording would help. We must remember that quite a lot of statements are taken, for example, at eleven o'clock at night on Sauchiehall Street, with a number of people standing—
Police headcams record such situations. You made a point about resources, but surely we could improve best use of resources to record properly what was said.
I do not know whether a video camera of some kind could be used in that way, because I have not looked at the issue. However, I know that Lothians and Borders Police is experimenting with a notebook that is essentially a personal digital assistant—perhaps you have heard about that experiment. The advantage of using the PDA, of course, is that it records what the police officer writes on it—I am told that officers' handwriting has greatly improved since they started using that sort of thing—in blocks of text that are locked in after 10 words or so and cannot be changed. If a witness says that they want to correct what they said, the officer must write "Witness corrects the statement" and so on. It seems to me that that has potential for making a big improvement in the quality of police statements.
Thank you, Lord Coulsfield, for your comment about the ECHR and the upcoming House of Lords decision. Can I ask you whether a House of Lords decision is now as relevant as it undoubtedly once was, or whether, if we are looking for a view on what the ECHR really means, we need a European Court of Justice decision? Obviously, a House of Lords decision is a statement of the view of the House of Lords and is therefore binding where it is binding, but does it actually give us a definitive answer these days?
No. You are perfectly right that, for some questions at least, the European Court of Justice is the final court. There is still an area of coming and going between Europe and the supreme courts of the various jurisdictions, because, while the European Court essentially interprets the European convention on human rights, the interpretation of domestic law is a matter for the supreme court, which in this case is the House of Lords. There is therefore an area in which the House of Lords still may make a final decision.
I am sure that that is for another day.
Yes. In some cases, there is a subtle and complicated relationship between what the supreme court can decide and what the European court decides.
While you are here, will you tell us the name of the outstanding case?
It is the Home Secretary against AF and others—it is reported with initials—and the reference in the Court of Appeal was [2008] EWCA Civ 1148. It appears in the civil judgments because it is not a criminal proceeding but a proceeding under the Prevention of Terrorism Act 2005 for a control order.
I thank you very much for coming this morning. It has been extremely useful.
Thank you very much for giving me the opportunity.
Delighted.
Meeting suspended.
On resuming—
I warmly welcome the final witnesses today: Professor Neil Hutton and Dr Cyrus Tata of the centre for sentencing research at the University of Strathclyde; James Chalmers, senior lecturer in the school of law at the University of Edinburgh; and Dr Sarah Armstrong, senior research fellow at the University of Glasgow.
Good afternoon, Dr Armstrong and gentlemen. The bill's provisions on a sentencing council have attracted criticism on the basis that they would undermine the independence of the judiciary. What are your views on that claim?
I will try to be brief. In principle, a sentencing council can do the opposite and can be a way of buttressing judicial independence rather than detracting from it, but it all depends on the detail that is in the bill. I have some concerns about the fact that the council that is proposed in the bill appears to report mainly to the Scottish ministers and, to some extent, the Lord Advocate. I would want it to be more distanced from the Executive and perhaps a little bit more accountable to the Parliament. However, in principle, a council could buttress independence if it was set up in the right way. It could provide a buffer between the heat of the moment—in electoral politics or a particular case—and judicial sentencing to enable a more coherent and calm development of policy.
I am all for calm.
I agree with Cyrus Tata. For me, judicial independence means that a judge makes a decision in an individual case. It is entirely appropriate for a body such as a sentencing council to develop a broader sentencing policy or to decide what sentencing should be for particular types of cases. I do not think that that interferes with judicial independence at all; I think, as Cyrus does, that it offers the opportunity for judges to engage with one another and with others in developing a sentencing policy in a more transparent way than they are currently able to do.
I concur with my colleagues on the panel, who are the experts on sentencing councils. I approach the issue more from the perspective of considering prison populations. I cannot speak about the specific mechanics of a sentencing council, but the fact that we seem to send more of our population to prison every year than any other country in Europe does means that something is not right at the sentencing end. To the extent that a sentencing council would improve transparency and coherence—I am not sure that consistency is the only value that should be discussed—I wholly support my colleagues.
Given that the bill makes clear that the final decision on sentencing is still left to judges, I do not see how judicial independence is undermined.
All right, that is very clear.
I will have to defer to my colleagues on that matter.
That is fair enough. Dr Armstrong?
I know that Neil Hutton and Cyrus Tata are responsible for quite a lot of the evidence on consistency and inconsistency, so I will be brief. The judges may not feel that there is any evidence of inconsistency, but are they offering any evidence for consistency? The question suggests that there is a lack of evidence in general, and Neil and Cyrus have dealt with that issue, but if the judges are not sure about the consistency or inconsistency, there seems to be a strong argument to support some sort of mechanism that rationalises the process.
That is a neat way of turning it round. I do not know what the judges would say, but I can guess.
Cyrus Tata and I carried out a study, which I will let him talk about. When proposals for a sentencing council were being drawn up in New Zealand, which has a pretty similar system to ours in that it allows for extensive judicial discretion, a national comparison was carried out. Substantial variations were found, which were unlikely to be attributable to differences in offences and offenders, and some courts were found to be systematically more severe than others. I would guess that if we carried out the same research in Scotland, we would come to similar conclusions.
Are you saying that there is no research in Scotland?
Cyrus Tata will talk about the research that we conducted, which as far as I am aware is the only study of consistency in sentencing in Scotland. Judges talk about individualised sentencing, and how important it is to take account of the facts and circumstances of each case. I agree that that is important, but the other important aspect of justice and sentencing is fairness and treating like cases alike, and judges have no way to define what a like case is.
That is very clear.
Consistency should not be the be-all and end-all of our discussions about a sentencing council. It is more interesting to consider what a council could do, such as bolster independence. The issue has come up several times, and it has been claimed that there is not a shred of evidence of inconsistency. The response to that is that there is limited evidence of a degree of inconsistency in the courts, but also evidence of consistency, by which I mean—
Why is the evidence so limited? Is there a problem in gathering evidence?
There are various problems. First, to compare like cases is quite difficult. For example, I do not consider the Government statistics about different courts' rates of custody to be evidence of consistency or inconsistency because, as committee members have pointed out, those are bald statistics.
So they are of as much use as league tables of school performance—in other words, useless.
Exactly. They do not control for input. If you do not control for input, you are unable to control for output. The first point is a methodological one.
Do you mean judges?
Among others. Such reticence would be perfectly understandable, from their perspective.
Is that not frustrating for you, though?
It is understandable. As a researcher, one must always understand the pressures that people are under on a daily basis.
I understand that, but a disinterested observer might say that the judges could be accused of blocking research. What do you think about that? I am not saying that they are guilty of that; I am just saying that they could be accused of it.
The study that Cyrus Tata and I did many years ago was at the invitation of some sheriffs. They asked us to consider the pattern of sentencing in three courts. In order to do that, we had to have some definition of consistency. We did that by asking the judges to help us to define consistency. They drew up a way of doing that—in effect, guidelines—and we demonstrated that there was a large degree of consistency but that one or two judges were out of line with the others. It is unusual for judges to participate.
That is the point that I was just about to make. That is the exception rather than the rule.
You raise a good question.
You would say that the thing to aim for is not uniformity but coherence.
Indeed. Uniformity is not consistency. It is important that we compare like cases. We are not saying that all house break-ins must get the same sentence.
That is very helpful. Will the bill help to tackle existing inconsistencies?
Well-crafted guidelines, the best example of which is probably the Minnesota guidelines, can help enormously. First of all, given that the range of penalty for an offence can be quite wide, there is scope for a warranted level of disparity—in other words, judges can sentence across a particular band. However, they can always depart from the guidelines. The Minnesota system builds in a 20 per cent departure rate, anticipating that judges will sentence outwith the guidelines in one case in every five and recognising, as judges keep telling us, that cases are very different and complicated and that guidelines cannot capture all of the many factors that have to be taken into account.
I am obliged to you for that very clear explanation.
As you have clearly shown, this is not merely a simple matter of consistency and inconsistency; it is much more complicated than that and brings in many other issues, not least policy making on the basis of research. Are the judiciary in Scotland generally receptive to the idea of taking research on sentencing into account in their determinations and decisions? I guess that that question is for Dr Tata or Professor Hutton.
I will respond briefly and then pass over to Professor Hutton. Judges are routinely sent research reports, but they are extremely busy people who day after day have to think about individual cases. That is perhaps different from thinking about policy, but there is certainly room for more knowledge transfer, knowledge exchange and so on. A sentencing council would be able to assist in that, particularly if it were genuinely independent from the executive branch of government. I have to say, though, that my concerns in that respect are not shared to the same extent by my colleagues.
I am afraid that I do not know whether judges are receptive to research because, as Dr Tata pointed out, it is hard to see how such evidence would help them to make decisions on individual cases. On the other hand, a sentencing council or that kind of body would give judges the opportunity to get together to discuss issues not only with one another but with other people, to consider evidence and to develop sentencing policy for certain kinds of case or offence. As they have no institutional means for doing that at the moment, it is a bit difficult to answer your question.
Does that raise the broader question whether we are using prison resources and other resources in the most effective way to achieve certain ends? For example, I was very struck by the tables of statistics in Dr Armstrong's submission, comparing Scotland's use of imprisonment with that of other countries. I wonder whether Dr Armstrong has any view on the suggestion that one benefit of the sentencing council approach might be that, as a matter of public policy, judges and others would be able to consider some of these themes, see whether we are getting best value out of prison and find out what we could do differently.
Yes. At the moment, there is no centralised source of information and no mechanism for co-ordinating sentencing—that is probably what we want more than to tell the judges what to do—so that the prison population is turning out to be more like that of Slovakia than that of Sweden. If judges knew that we are heading towards Transinistria rather than Ireland, they would be surprised and worried. The fact is that it takes quite a lot of digging, on an individual basis, to figure that out. A sentencing council would therefore be an important resource for judges.
Some of what you say points towards the general area of decisions and sentencing guidelines, but quite a lot of it points back to the Parliament and the Executive in terms of the bills that we pass and the administrative actions that are taken in support of the general courts system. Is that right? The sentencing council could be very narrow and deal only with one bit of that rather than having a wider, more general remit of sentencing reform. Is that fair?
Yes, I think that that is right. Whatever evidence exists on the effectiveness of sentencing councils and on the consistency or inconsistency of sentencing, there is no evidence to tell you what values the criminal justice system should ultimately have. That is for the political system of the country.
Would you like to speak a little on the benefits that a sentencing council could bring? We have begun to get into that area a bit with one or two things that have been said. Dr Tata, do you have any thoughts on that?
The bill proposes that the sentencing council will prepare guidelines. However, I think that that is the less interesting part of what a sentencing council could do. There is a great deal of consensus around what others have said about the advisory possibilities of a council.
Your comments are very helpful.
With the greatest respect to my colleague—as we always say when we are about to call what someone has said a load of rubbish—I am firmly of the belief that issuing guidelines is a vital part of a sentencing council's role. Guidelines are important because, as I have said before, they enable us to develop a language for talking about consistency in sentencing, which is vital to persuading the public that we are trying to do justice and to be fair. I agree with Cyrus Tata that it is important for a sentencing council to be involved in public engagement, public education and research into sentencing practice. The remit for the council that is proposed in the bill is fairly broad and would allow the council to do many different things. Whether it would do them is a different story and is related to the composition of the council, to which we will return.
In the absence of guidelines, whether they come from a council or from somewhere else, it is difficult to have a proper public debate about appropriate sentencing, except at the level of individual cases. It would be much more helpful if we were able to have that debate at a more general, abstract level.
My final question concerns the relationship between the sentencing council and other organisations. Dr Tata suggested that some of the constitutional issues might be overcome if the council's role were advisory. Do panel members have a view on the matter and on the linked issue of the legal effect of any guidelines that might emerge from the council's deliberations?
I will try to be brief. I am anxious that, under the bill as it stands, the council will not be distant enough from Scottish ministers and the Lord Advocate. We need to put more distance between the two groups. The council needs to be a genuinely independent buffer, to protect judicial independence from the heat of the moment and from future justice ministers, whoever they may be, taking forward—
Does the point not apply to the Parliament as much as to the Executive? It was suggested that there would not be the same issue if there were more parliamentary control. However, the separation of powers involves three stools—it does not apply only to the Executive.
Indeed. However, I have less anxiety about the Parliament, simply because the Parliament, by its nature, is a much more open body.
That is a helpful point.
I am less concerned about the issue—I am reasonably comfortable with the provision that the bill makes for the council's independence. I am a little less sure about its relationship with the appeal court, which is left a bit vague in the bill. One body must have the final say. In my view, that body should be the sentencing council, if it is providing sentencing guidelines at a general level. The appeal court can make decisions in individual cases, but broad decisions should be made by the sentencing council. If the appeal court does not like a guideline, it can refer that back to the council.
Can you elaborate on why you think that the sentencing council should have the final say? The judges take the opposite view and argue that guidelines should have the imprimatur of the assembled judiciary.
If there are to be sentencing guidelines, there must be one body—not two—that is responsible for issuing them.
Why should it not be the appeal court, as has been suggested?
If we have a sentencing council whose task is to devise guidelines, it is appropriate that it should have final authority. That preserves judicial independence at a sufficient level, as it allows the appeal court to make decisions in individual cases. The court would be able to say to the council, "The guidelines do not work here—have another look at them." In the States, the commission that is responsible for the guidelines amends them if they are not working in practice.
I return to the very beginning of part 1 of the bill, which sets out the purposes of sentencing, rather than an overarching principle. Someone—it may have been one of you, but I cannot remember—commented that perhaps we should start with an overarching principle of fairness, before worrying about consistency and coherence. If we started from the principle that the basis of the legal system, from which sentencing must derive, is fairness, would that be a fair point and would it be worth saying?
It is appropriate for Professor Hutton to answer.
It was probably me who made the comment.
It was—that is why I said you should answer.
We can try hard to deliver fairness, whereas it is much harder to be sure that sentencing can effectively reduce offending, so we should strive hard to deliver fairness. The first guideline that the English Sentencing Guidelines Council produced was a statement of overarching principles of fairness in sentencing. It is arguable that the Scottish sentencing council's first guideline should set an overarching framework in which to work.
That is fair enough.
Section 17 discourages the use of short sentences of six months or under. However, sheriffs have argued to the committee that short sentences can be useful. What are panel members' views?
It might be appropriate for Dr Armstrong to lead the response.
When I was at Barlinnie last Monday, I was asked what could possibly be done with all the inmates there who are serving sentences of between 20 and 30 days. That is just about enough time for officers to assess whether a person has a drug problem, will have a housing need when they are released or has family problems, before it is time for that person to go home.
I am sorry—we are talking about custodial sentences now, but we will discuss community sentences later.
I was just making a comparison. When the press report a proposal to eliminate six-month sentences, that suggests that anyone who does something that is not very serious will experience no consequences.
How do you respond to the sheriffs' point that in some cases—such as that of the repeat offender who has had community sentences and fines that have not worked—a short sentence can turn a person's life around?
I have seen no anecdotal or empirical examples of that. I have heard the sheriffs say that, but I would like to see the person for whom that is true. Strathclyde Police's violence reduction unit, which has famously said that it needs more public health workers than police officers, issued a little handout of the story of David—I do not know whether the committee has seen it. The story follows the life of a young man who started by serving short sentences and who ended up as a murderer with a long-term sentence. Such stories are telling. A series of short sentences leads to bad results. If the judges can produce another story—about Mary, for example—in which a six-month sentence causes her to bottom out and turn around, I would be interested in seeing it. I have not seen any such evidence; it would go against pretty much all the international research that exists.
Have you carried out any research on why people are imprisoned for less than six months, such as for periods of 20 or 30 days? For what crimes are such people imprisoned?
I have not conducted any research on that. I am currently doing a project that looks at remand and the use of backdated sentences, which is an interesting phenomenon. Some people do short-term sentences simply because they are on remand. By the time that they get to court, they are sentenced to whatever time they did on remand. The interesting thing about that group of people is that they tend to be remanded not because of the crime with which they are charged, but because of their history: they already have an extensive criminal history, or they were on bail, or they have previously failed to comply with bail conditions. That fits the model of feeling like a last resort, in that the people are remanded and are then given a short sentence. However, to answer your question, I have not done any research on that issue.
As we discussed previously, for a couple of reasons I am rather more agnostic than Dr Armstrong is on the presumption against sentences of six months or under. If it is so difficult to deal with people who are in prison for short periods of time, the obvious answer—one can hear people saying it—is, "Well, send them to prison for longer if that will help them more." No. The issue that needs to be grappled with is not the length of time, although the six-month limit is problematic because it is not harmonious with the new summary powers for sentences of up to 12 months. Instead, we need to look at what types of cases, broadly speaking, should be imprisonable. If the argument behind the bill is that we should not imprison non-violent, non-dangerous offenders who might simply be feckless, we should focus on those types of cases. We should specify those cases, rather than a limit of six months, because the group of prisoners on sentences of six months or under will include—this will give the tabloids a field day—people who are convicted of dangerous and violent offences. That is what we should focus on.
Where should the needs of victims be taken into account? The written submission from either Dr Tata or Professor Hutton—as sod's law would have it, I cannot find the relevant paragraph—suggests that the purposes of sentencing should include the issue of fairness. How is it fair to a community not to imprison a person who, without being violent, has been noisy and has engaged persistently in antisocial behaviour, for which fines have already been imposed? If that behaviour goes on and on, where does fairness for the victim come in? Perhaps a short prison sentence might give both the community the respite that it needs and the offender the shock that is needed to change that behaviour.
The problem of persistent but arguably not serious offenders is not unique to our jurisdiction. I accept that not particularly serious behaviour can cause people a lot of distress and trouble in some communities. However, every jurisdiction has the same problems and other jurisdictions seem to find more imaginative ways of dealing with it that do not result in the use of prison.
I am anxious to get as much out of this evidence-taking session as we can and I stress the need for the answers to be as brief as possible.
The bill seeks to amend the custody provisions in the Custodial Sentences and Weapons (Scotland) Act 2007 prior to their being brought into force. It is intended that that will help to create an effective regime for managing offenders. What are the witnesses' views on that?
I have concerns about the 2007 act. I gave evidence to the Justice 2 Committee about the Custodial Sentences and Weapons (Scotland) Bill, which I thought was a pretty poor piece of legislation, as many witnesses said. This bill seems to offer the hope of mitigating some of the worst problems of the 2007 act, particularly the 15-day cut-off whereby the act attempted to bring combined sentences down to 15 days. That was crazy, and it was recognised that that was simply not achievable. Instead, the bill talks about a "prescribed period". The policy memorandum suggests that that will be 12 months but it is not set out in the bill, and I have concerns about that.
I agree with that and have nothing to add.
You concur with your colleague.
Indeed.
Does James Chalmers have anything to add?
I do not.
I agree with Dr Tata.
That takes us on to alternatives to prison, about which the Scottish Prisons Commission had quite a lot to say. Will the witnesses give their perspective on the suggestions that have emerged for non-custodial, community sentences and whether they will be effective?
I included a section on effectiveness in the materials that I circulated to the committee. What do we mean by effectiveness? Do we mean that community sentences will eliminate the likelihood of someone reoffending? There is some evidence that they will and that they work a little bit better than short prison sentences at doing that.
I want to pick up on what you said about immediacy. The timescale that is envisaged seems to be that the appropriate officer should be available and the community sentence should start within seven days, which does not seem immediate to me.
You are right; it does not seem immediate to me, either. There is no magic number in the literature that defines "immediacy". The Scottish Prisons Commission considered community sanctions in various jurisdictions and found that in some places "immediacy" means the same day and in others it means within a week. What it does not mean is three to six months, which is the timescale in the current climate, after which there can be a further wait if the programme in which the person is at last allowed to enrol has a waiting list.
What happens to the people who are waiting to go to prison?
They stay at home until space opens up in prison for them.
What if the person is a murderer?
There are probably priority prisons, and there are secure—
So there is not a waiting list; there are priority prisons—
There are maximum security prisons. However, people who have been convicted of homicide might wait for a prison place. Bail is allowed for people on homicide charges.
What do other members of the panel think about the immediacy issue?
If punishment is to be effective, the important issue is probably not immediacy after the decision to punish but immediacy after the commission of the offence, which is a different story altogether. How long do people have to wait before they come to court? That is a resource issue.
That is an interesting perspective.
The issue is also whether the offender pleads guilty at the earliest opportunity.
Indeed.
My original question was about the effectiveness of community penalties. Do the witnesses have other views on what is proposed?
If judges are to have the capacity to attach a large number of conditions to a community penalty, I would be concerned that the more conditions are imposed, the greater the chance that they will be breached and the person will ultimately end up in prison. There needs to be proportionality of punishment in the context of community penalties. How many conditions will be imposed on a person? Will conditions relate to the seriousness of the offence, or will they be entirely about what is needed to make the offender become a better person or change their life? Such issues are not addressed in the bill.
Is it fair to say that the Scottish sentencing council will be important precisely in that context? In other words, it will suggest to judges and sheriffs what is appropriate and say how many conditions might be imposed. The council could conduct research into such matters.
Indeed.
Will the bill improve public understanding of community sentencing?
Probably not, on its own, but if the sentencing council works well it will be able to do much to improve public understanding.
I concur with that. One issue is the implementation of the release arrangements, which are regarded as community penalties—although technically they are not. The bill does not make the position clear, which is unfortunate.
Is there more that we can do to improve public understanding?
Are you asking what the Parliament or the Government can do? I can give you an example of a sentencing council that has taken public engagement and education seriously. The Sentencing Advisory Council in Victoria, Australia, has been energetic in that regard. It runs a "you be the judge" roadshow for schools, trade unions, colleges and other places, at which judges and the community discuss sentencing.
I agree. The Victoria council provides an excellent example of how to engage with the public. We also need to try to find out a little bit more about what the public think about specific issues and areas. At the policy level, there must be a two-way street between the public and the council.
I have a couple of brief questions for clarification, the first of which is to Dr Armstrong. I thank you very much for your written submission, which is clear about incarceration levels elsewhere, and relates incarceration levels to populations. I am happy to accept the figures, but have you related incarceration levels to offending levels?
No.
Why not?
Because the relationship between crime and imprisonment appears in Scotland, as in most jurisdictions, to be weak and not to explain sufficiently prison populations. Last night, Sonja Snacken, who is a professor in Belgium, gave a lecture at the University of Edinburgh in which she considered the relationship between crime and imprisonment. She surveyed research across Europe, which shows that there is less of a relationship between crime and imprisonment than there is between economic cycles and imprisonment or between political factors and imprisonment. In addition, various prison projections that were calculated using different crime versus criminal justice scenarios were included in the 2001 Halliday report on sentencing in England and Wales, and it was found that a change in crime levels has less impact on the prison population than a change in sentencing law.
It strikes me that it is a little bit odd that nobody has related the number of people who have been jailed to the number of offences that have been committed, as the number of people who have been jailed is an obvious corollary of that.
It is natural to think that, and that should be obvious. There should be a relationship between how much harm there is in a community and how many sanctions exist in it but, over time, we have found that there does not seem to be a very strong relationship between the two. A graphic in the Scottish Prisons Commission's report shows changes in the prison population. A line goes straight up while the crime rate in Scotland goes up, down or stays stable. The report points out that the prison population has gone up when crime rates have increased, stayed flat and declined. That is an interesting example from Scotland that shows that there does not seem to be a corollary relationship between crime and imprisonment.
There are two difficulties.
I am sorry, Mr Chalmers. I am aware that you have not really—
I have less to say about sentencing than my colleagues have. It is not my specialist field.
We must end the discussion; obviously, we have had to truncate it slightly. I thank the witnesses for coming to the meeting. I am sure that they would be more than happy to respond to any issues that we might ask them about in writing.
Meeting continued in private until 13:32.