Subordinate Legislation
Extended Sentences for Violent Offenders (Scotland) Order 2003 (Draft)
I welcome Hugh Henry, the Deputy Minister for Justice, to the committee. Members will have a note that the clerk prepared on the Extended Sentences for Violent Offenders (Scotland) Order 2003. The order is an affirmative instrument, which is why we have the minister with us this morning. Without further ado, I ask Hugh Henry to move and speak to motion S1M-3711.
Thank you, convener. The order is made in exercise of the powers conferred by section 210(7) of the Criminal Procedure (Scotland) Act 1995 and is subject to the affirmative procedure.
It might be helpful if I explained the background to the provisions in the order. The proposal to make the order arose from a recommendation in the report of the committee on serious and violent sex offenders, which was chaired by Lord MacLean. Part of the MacLean committee's remit was
"to consider experience in Scotland and elsewhere and to make proposals for the sentencing disposals for, and the future management and treatment of serious sexual and violent offenders who may present a continuing danger to the public".
Among other issues, the committee considered the present provision for extended sentences, which are competent only in cases of crimes committed after 30 September 1998. The committee proposed that one aspect of the law relating to extended sentences should be changed.
At present, under section 210A(3) of the 1995 act, the extension period for a common-law sexual offence cannot exceed 10 years, whereas for a common-law violent offence the period is a maximum of five years. The committee could not see the justification for that difference, which it agreed had the effect of limiting the discretion of a court in fixing an extension period for a violent offender who may be in need of just as much post-release supervision as someone whose crime was sexual in nature.
The purpose of the order is to make provision for the MacLean committee's recommendation 11, which is that Scottish ministers should use their powers under section 210(7) of the 1995 act to amend section 210A(3)(b) to regularise the maximum competent period of an extended sentence to 10 years for both violent and sexual offences.
Extended sentences were specifically designed to address the problem that some violent and sexual offenders continue to present a risk to the public even after they have reached the end of a determinate sentence. The extended sentences allow courts to impose additional post-release supervision on a licence if a court considers that the normal sentence would not provide a period of supervision of sufficient length to protect the public from serious harm.
An extended sentence can be imposed on a person convicted on indictment in respect of a sex offence, as defined in section 210A(10) of the 1995 act, if the court intends to pass a determinate custodial sentence of any length, and a violent offence, if a court intends to pass a determinate custodial sentence of four years or more. A violent offence is defined in section 210A(10) of the 1995 act as
"any offence (other than an offence which is a sexual offence within the meaning of this section) inferring personal violence."
In response to the consultation paper on the MacLean committee recommendations, the Law Society of Scotland and four local authorities agreed with recommendation 11 that the maximum extension period of an extended sentence should be 10 years for both sexual and violent offences prosecuted at common law. Scottish ministers subsequently agreed to use their powers to amend that provision by statutory instrument.
I move,
That the Justice 2 Committee, in consideration of the draft Extended Sentences for Violent Offenders (Scotland) Order 2003, recommends that the Order be approved.
Thank you, minister. There may be a few questions.
What I want to say is more in the way of a couple of observations. I am certainly minded to support the draft order. I think that there has been limited justification, as the MacLean committee observed, for the difference—five years in one case and 10 in the other.
In particular, I am informed to some extent by my visit last year, in relation to the prison estates review, to a French prison at Bapaume, where the strong assertion was that the majority of the prisoners had a sexual aspect to their offences. That meant that something like 10 times as many people had a sexual aspect to their crime than would be expected as a percentage of the overall prison population.
As a result of reviewing long-term offenders' cases in the Scottish system, it is emerging that more people who are not categorised as sexual offenders have a sexual aspect to their offences, so I suspect that there has been under-reporting. An increase in the supervision of violent offenders will usefully catch some violent offenders who have a sexual aspect to their offences.
Paragraph 11 of the Executive's note refers to the
"designation of both the supervising authority and supervising officer at the start of the prison sentence".
I recognise that that idea is not new, but I welcome it as part of the supervising authority's throughcare provision. However, I sound a note of caution about appointing a supervising officer at the start of a prison sentence when the period of supervision may extend to 10, 15 or 20 years. It seems implausible that a person who is appointed at the outset will sustain supervision over the whole period. It would be useful if the minister gave an assurance that the system will not break down if there is a discontinuity in respect of the supervising officer—I am convinced that the minister will be able to give me such an assurance. We are talking about long-term supervision and it is important that the processes work well. Although I seek such an assurance, I support the intentions of the draft order.
I am advised that the administrative guidelines cover guidance to local authorities and deal with that matter. A person will be identified as the supervising officer but, if that person leaves for whatever reason, the facility exists for someone else to be appointed in that person's place. Such a contingency is therefore dealt with.
I have no difficulty in supporting the motion, but I am trying to understand where such a provision fits in with other matters that we have dealt with. I appreciate that you did not have ministerial responsibility for this area at the time, but have you had a chance to catch up with our discussions about orders for lifelong restriction, for example? We tried to grasp the effect of an order for lifelong restriction that applies to sexual and violent offenders compared with the effect of supervision orders under which there is supervision for a period of time following a person's release from prison. Why would an order for lifelong restriction not do the trick and be the solution, rather than the provisions in the draft order?
On procedure, at stage 2 of the Criminal Justice (Scotland) Bill, the committee considered a provision that deals with maximum sentences for offences in connection with obscene materials in child pornography cases. Why was that provision in the primary legislation? Does that mean that, if ministers wish to extend sentences in future, they will do so through affirmative instruments? I would like clarity about the process and a comparison of the provisions of the draft order with orders for lifelong restriction, which the MacLean report also dealt with.
I am not familiar with the discussions on the orders for lifelong restriction, but the draft order specifically attempts to bring together sentences and procedures for sexual and violent offenders. It should not detract in any way from other measures that would need to be considered from time to time as part of a broader process to make sentencing more effective. If points were made in that other debate to which we need to refer, I will inform the convener.
Not all offenders would meet the criteria for orders for lifelong restriction. The MacLean committee considered that extended sentences would provide the courts with options for additional supervision of violent offenders. That may be part of the solution, but if other suggestions are made I will inform the committee of them. I will consider whether issues of procedure need to be addressed and report back to the committee on that, too.
The points that I made were in no way critical of you, minister. I was trying to understand where things come from. Can you clarify why extended sentences are competent
"only in cases of crimes committed after 30 September 1998"?
Does that provision relate to the Crime and Disorder Act 1998?
Yes.
I am relaxed about the order. I see no difficulties with it.
Motion agreed to.
That the Justice 2 Committee, in consideration of the draft Extended Sentences for Violent Offenders (Scotland) Order 2003, recommends that the Order be approved.
I thank Hugh Henry for attending this morning's meeting.