Custodial Sentences and Weapons (Scotland) Bill: Stage 2
Item 3 is day 3 of stage 2 of the Custodial Sentences and Weapons (Scotland) Bill, during which we will consider sections 21 to 35 of the bill.
Will the amendments be taken in the order that is shown on the marshalled list?
Yes.
Section 21—Referral to Parole Board: postponement
Amendment 54, in the name of the minister, is grouped with amendment 81.
Section 21 deals with the circumstances in which an offender's case has been referred to the Parole Board for Scotland for review and he or she receives what is, in effect, a second sentence that affects his or her release date. As drafted, the section is inconsistent in how it would deal with this matter. Where the Parole Board has yet to fix a date for considering the prisoner's case, the section, in subsection (2), caters only for the date's being postponed once—because a further sentence has been imposed. However, in cases in which the board has already fixed a date and a further sentence is imposed before that date, the section—in subsection (4)—also covers the situation in which yet another sentence is subsequently imposed.
Amendment 54 will insert into section 21(2) a paragraph that will allow the effects of a third sentence—or, indeed, the effects of any further sentence—to be treated in the way that is detailed in section 21(4). In effect, a loop is created. In practice, the Parole Board will have to postpone the date for reviewing a prisoner's case where he or she receives an additional sentence in the period after the case is referred and before the board has fixed a date for considering the referral. The section will apply where the prisoner would not be eligible for release from the subsequent sentence on the date that would otherwise have been fixed for a hearing. The board will then set an appropriate date for a hearing to take place.
Amendment 81 is a drafting amendment that will remove from section 21(4)(b) the redundant words "the Board must". The Parole Board's requirement to act is already expressed at the beginning of subsection (4).
I move amendment 54.
Amendment 54 agreed to.
Amendment 81 moved—[Johann Lamont]—and agreed to.
Section 21, as amended, agreed to.
Section 22 agreed to.
Section 23—Compassionate release on licence
Amendment 55, in the name of the minister, is grouped with amendments 56 and 73.
Amendments 55, 56 and 73 are minor drafting amendments. Throughout the bill, we have used the word "prisoner". For the sake of consistency, amendments 55 and 56 will remove from section 23(1) two occurrences of the word "person" and replace them with "prisoner".
A further drafting amendment applies in section 29, where the word "specified" will be changed to "included" to ensure that the section is consistent with the form of words that is used elsewhere in the bill.
I move amendment 55.
Amendment 55 agreed to.
Amendment 56 moved—[Johann Lamont]—and agreed to.
Section 23, as amended, agreed to.
After section 23
Amendment 57, in the name of the minister, is grouped with amendments 58 to 72.
In its stage 1 report, the committee stated its preference for standard licence conditions to be included in the bill. The Executive's view remains that there is a need to strike a balance between making the process as clear as possible and having a degree of flexibility to attach additional licence conditions if necessary. However, we accepted that there is still scope to clarify the standard conditions, so we agreed to review the relevant provisions in the bill, which is what will be achieved by amendments 57 to 72.
Amendments 57 to 61 will deliver a package that will prescribe in statute the standard conditions that will require an offender to be of good behaviour and not to leave the United Kingdom without permission. Of course, that will not prevent Scottish ministers or the Parole Board for Scotland from imposing other appropriate conditions in individual cases. Amendments 62 to 72 will deliver the same for the supervision conditions for offenders who will be subject to supervision.
Amendment 57 will insert after section 23 a new section that will prescribe the conditions and the offenders to whom those conditions apply—in practice, they will be custody and community prisoners and life sentence prisoners. It will also allow travel restrictions to be suspended with the permission of Scottish ministers, or—in practice—the supervising officer. For example, it might not be unreasonable to allow an offender on life licence, who has been on licence in the community and has stayed trouble-free for a long time, to take a holiday abroad with his or her family. Allowing for travel on compassionate grounds would also be reasonable. Finally, amendment 57 will disapply a travel restriction on people who face deportation.
Amendments 58, 59 and 60 will amend the provisions for setting licence conditions for custody and community prisoners who are referred to the Parole Board, custody and community prisoners for whom Scottish ministers will fix licence conditions, and life sentence prisoners, in order to provide for standard conditions and, if applicable, supervision conditions to be attached to licences. The amendments will also allow licence conditions on the direction of the Parole Board to be added to, varied or cancelled, where appropriate, with the exception of the standard conditions set by Scottish ministers.
Amendment 61 will insert a new section after section 26, entitled "Compassionate release on life licence: conditions", which will place a requirement on Scottish ministers, when releasing a life sentence prisoner on compassionate grounds, to include the standard conditions and, where appropriate, the supervision conditions.
Amendment 62 will provide that section 27, which deals with supervision, will apply when certain categories of offenders are released on licence. Those categories are life prisoners, custody and community prisoners who are serving a sentence of six months or more, custody and community prisoners who have been detained beyond the court-imposed custody part, custody and community prisoners whose custody part was set at the maximum 75 per cent by the court at the point of sentencing, prisoners who are released on compassionate grounds, extended-sentence prisoners, sex offenders and children.
Amendment 63 is a drafting amendment that will, for the sake of consistency, replace the two occurrences of the word "person" at the beginning of subsection (2) of section 27 with the word "prisoner".
Amendment 64 clarifies that prisoners who have been given the maximum 75 per cent custody part by the court at the point of sentencing are to be included in the supervision requirements.
Amendment 65 is a technical amendment that will alter a reference in order to make it clear that any prisoner who is detained beyond the expiry of the custody part always has the supervision conditions included in his or her licence.
Amendment 66 provides that supervision conditions, in addition to applying to those whom I have mentioned, will not apply to prisoners who are liable to be deported.
Amendments 67 to 69 provide that, in addition to the supervision provisions that are already in the bill, the prisoner will be under the supervision of a relevant officer of the local authority specified in the licence, and that the prisoner must comply with the requirements imposed in relation to supervision by the relevant officer. The prisoner must also maintain contact with the relevant officer as the officer directs, and must inform the relevant officer of any change of address and any change in employment.
Amendment 70 will place a further requirement on the prisoner to comply with all conditions relating to supervision that might appear on his or her licence.
Amendment 71 will delete subsection (4) of section 27, as those provisions will appear in the new section that will be inserted by amendment 57.
Amendment 72 will move section 27 to after section 23 in order to place it in its proper context.
That has been a lengthy explanation, but I hope that it demonstrates our willingness to take account of the committee's helpful suggestions. I also hope that these amendments and others reassure members that the measures for managing offenders in the community and for ensuring that support exists when it is required—while public protection remains paramount—are an integral part of the new sentence-management regime.
I move amendment 57.
I hope that, in the same spirit in which the minister finished her remarks, she will listen to the committee's helpful comments. As she knows, throughout the bill process my mind has been focused on an anomaly to which we keep returning, which is that people who have been sentenced to 14 days in jail will spend longer in custody than people who have been sentenced to up to 30 days in jail. In looking at amendment 57, I am mindful of the remark that the minister offered to me last week when I asked about the issue. She advised me and the committee that we should not underestimate the fact that somebody serving their community sentence after they have been released from custody is included in the bill.
To the previous standard condition for releasing somebody on community sentence—that they must be of good behaviour—amendment 57 will add the condition that the person is prohibited from leaving the country. I wonder whether the public will accept a person's spending 14 days in jail while an offender who has been given a longer sentence will be released on a community sentence because that person is asked to be of good behaviour and to not leave the country. Will the public have sufficient understanding of that part of a community sentence? As the minister knows, my reading of the situation is that it is far better to keep the current position, whereby people who are sentenced to 14 days spend half their sentence in custody, rather than the full 100 per cent. Amendment 57 jumps out, given the remarks that she made last week on this very anomaly.
I am a little concerned about proposed new subsection (4), which amendment 57 would insert. I am clear about the intention, but what would be the position if an appeal process in respect of an illegal entrant to the country had not been exhausted? There might be appeals outstanding under sections of the Immigration Act 1971. There might be a falling between two stools. The prisoner's custody period could be ended and he could be released on licence. He could disappear into the great blue yonder because he could not be held because an appeal process had not been exhausted. I would appreciate reassurance on that.
The definition of "compassionate" could have been clarified earlier. Circumstances such as acute family illness or bereavement could arise in which any reasonable person would agree that the prisoner should be released on licence. I would have no objection to someone who has concluded the custody part of his or her sentence being allowed to go on holiday abroad, because that could happen under the existing system in any event. There is no problem there. Has "compassionate" ever been defined?
I suspect that my definition of "compassionate" is pretty rigorous in comparison with some others. I understand that it is a matter for Scottish ministers to determine any particular case. It is not the intention that the provision seems irrational and illogical. I said that if the offender was behaving himself or herself, was not getting into any bother and had been out in the community for a significant period, it would in certain circumstances be reasonable for that person to leave the country. However, it will not be a catch-all provision. The fact that it has been defined in those terms implies that it would be narrowed a bit.
I turn to the point that Colin Fox made. Everyone on the committee accepts that there is an anomaly and that there will continue to be an anomaly wherever the threshold is, if this is the process that we are using. The point that I was trying to make last week was not to understate the significance of the community part of the sentence, even if it were limited and even if it were about signposting. Colin Fox will have to say how he would deal with the anomaly even if he shifted the threshold—if he was going to set a limit at all. There is still something to do in sentences of fewer than 15 days that involves community sentencing.
On Bill Aitken's points, no one wants to see people disappearing
"into the great blue yonder",
as he described it. My understanding is that an offender will not, until his appeal is settled, be liable to be removed or deported. Such people will still be subject to the condition not to leave the UK, but might be detained under the Immigration Act 1971. It would not be a question of people simply disappearing—they would be caught one way or the other.
Amendment 57 agreed to.
Section 24—Release on community licence on Parole Board's direction
Amendment 58 moved—[Johann Lamont]—and agreed to.
Section 24, as amended, agreed to.
Section 25—Community licences in which Scottish Ministers may specify conditions
Amendment 59 moved—[Johann Lamont]—and agreed to.
Section 25, as amended, agreed to.
Section 26—Release on life licence: conditions
Amendment 60 moved—[Johann Lamont]—and agreed to.
Section 26, as amended, agreed to.
After section 26
Amendment 61 moved—[Johann Lamont]—and agreed to.
Section 27—Release on licence of certain prisoners: supervision
Amendments 62 to 71 moved—[Johann Lamont]—and agreed to.
Section 27, as amended, agreed to.
Amendment 72 moved—[Johann Lamont]—and agreed to.
Section 28 agreed to.
Section 29—Prisoner to comply with licence conditions
Amendment 73 moved—[Johann Lamont]—and agreed to.
Section 29, as amended, agreed to.
Section 30 agreed to.
Section 31—Revocation of licence
Amendment 74, in the name of the minister, is grouped with amendments 75 to 79.
Amendments 74 to 79 deal with the effects of a revocation of licence and a recall to custody on offenders who are released on compassionate grounds. The Scottish ministers already have the power to release any prisoner on licence at any time if they are satisfied that there are compassionate grounds for doing so. In effect, that happens in cases of offenders who have been diagnosed with terminal illnesses. It happens rarely—the annual numbers are in single figures.
Under the bill's provisions, a compassionate release licence will include the standard licence conditions and the supervisory licence conditions. Amendments 74 to 79 will clarify the procedures for revoking the licences of those who have been granted compassionate release and the circumstances under which they, like any offenders whose licences are revoked, would be considered to be unlawfully at large.
Amendment 74 will delete subsection (6) from section 31. The provisions on prisoners who are unlawfully at large will be replaced, for the purposes of clarity and ease of reference, with a new section to be inserted after section 31, through amendment 76. It will provide that, once
"a prisoner's licence is revoked",
but when they have not yet been detained in custody, they will be considered to be "unlawfully at large." Any period that is spent unlawfully at large will not count towards discharge of the sentence.
Amendment 75 will also add a new section after section 31. It will be entitled "Compassionate release: additional ground for revocation of licence". The new section will apply where Scottish ministers are satisfied that the grounds that led to compassionate release being granted are no longer justified. That is likely to result from a reversal of, or significant improvement in, the medical conditions that led to the compassionate release. The instances of that happening are rare, but we consider it advisable to allow for the possibility. The Scottish ministers will be required to revoke the licence and, if the offender is not already detained, to recall him or her to prison.
As I have said, compassionate release is granted in relation to very specific circumstances. If those circumstances change, it is right that prisoners should revert to serving the sentence that the court imposed and to being subject to the terms of the bill. Amendment 77 addresses that: it will insert a new section after section 31, entitled "Compassionate release: effect of revocation in certain circumstances". If the offender has been recalled to custody and that happens before expiry of the offender's sentence in the case of a custody-only prisoner, the custody part of a custody and community sentence or the punishment part of a life sentence, the prisoner's sentence will continue as if he or she had not received compassionate release.
Section 32 provides that, in cases where Scottish ministers have revoked a prisoner's licence, they
"must … inform the prisoner of the reasons for the revocation, and subject to"
the multiple sentences provisions,
"refer the prisoner's case to the Parole Board."
Amendment 78 will amend section 32 to include a prisoner whose compassionate release licence has been revoked. Amendment 79 will make a further amendment to section 32. It will require Scottish ministers to refer such a prisoner's case to the Parole Board when and if required to do so by the provisions in the bill. A prisoner whose compassionate release licence is revoked will be treated as though he or she had not been released. In the case of a custody-only prisoner, there is no role for the Parole Board. In the case of a custody and community sentence prisoner, the case would be referred to the board at the end of the custody part if the offender posed a risk of serious harm. In the case of a life sentence prisoner, the case would be referred to the board at the end of the punishment part.
I move amendment 74.
I assume that agreement to the amendments will not mean that a more administrative way of dealing with temporary compassionate release in the event of, for example, family bereavement or serious family illness cannot be introduced at some point. If it does mean that, the amendments will overcomplicate everything.
Secondly, if a licence for release on compassionate grounds is, for whatever reason, revoked, will the sentence be reduced by the period of that release or will that time be excluded?
On your first point, if we had found a simpler administrative way of doing this—
It would have been your preferred option.
Indeed. I think that, after studying the matter, we have accepted that that would be the case.
As for your second question, I have been advised that the time that the person in question is on compassionate release will count as part of the sentence until the point of recall, as opposed to the point at which they come back to prison. In other words, the period will stop when the person is recalled because it will have been decided that the grounds on which compassionate release were granted are no longer justified.
Amendment 74 agreed to.
Section 31, as amended, agreed to.
After section 31
Amendments 75 to 77 moved—[Johann Lamont]—and agreed to.
Section 32—Referral to Parole Board following revocation of licence
Amendments 78 and 79 moved—[Johann Lamont]—and agreed to.
Section 32, as amended, agreed to.
Section 33—Consideration by Parole Board
Amendment 37 moved—[Johann Lamont]—and agreed to.
Amendment 80, in the name of the minister, is in a group on its own.
Colin Fox will be glad to know that amendment 80 is another example of our willingness to listen and respond to helpful comments from the committee and other interests that will be most directly affected by the measures. We might not respond to every single comment, but we try to please where possible.
The Sentencing Commission's report on early release, which was published in January 2006, recommended that separate bodies should be responsible for recall and re-release decisions. At the moment, Scottish ministers and the Parole Board can order an offender's recall. The purpose of the commission's recommendation was to remove any potential for accusations of bias; the bill seeks to implement that by separating those functions. As a result, the decision to recall, which is made by Scottish ministers alone, will be reviewed by the Parole Board.
At stage 1, the committee and the Parole Board for Scotland expressed concern that applying the public interest test to recall to custody and the serious harm test to re-release would create difficulties in practice. For example, if an offender had been recalled to custody because it was in the public interest to do so, the Parole Board might have no option but to release the prisoner straight away because he or she did not pose a risk of serious harm. It was argued that such a situation would lead to a revolving door for recall cases, that it would place an unnecessary burden on resources and that it would defeat the key purposes of the arrangements.
Under the custody and community sentence structure, offenders will have the opportunity to use their time on licence in the community to address their offending behaviour and to turn their lives around. However, during the community part of the sentence, the offender can, if necessary, be appropriately restricted and supervised to ease their reintegration into the community and to protect the public. Offenders must be very clear that their liberty is conditional and that they cannot flout the conditions of their licences. That is why the broad public interest test will be applied to consideration of recall to custody.
Having listened to the committee and the Parole Board, we agree that the test for re-release should be the same when such cases are considered. Amendment 80 seeks to replace the serious harm test for re-release with the public interest test to allow the Parole Board to apply the same criteria in reviewing the circumstances of the recall and the case for re-release. The Parole Board has welcomed this change, and I trust that the committee will do the same.
I move amendment 80.
The minister is to be congratulated on recognising that the issue was a recipe for considerable difficulty. If the bill had been passed without amendment 80, there would have been all sorts of difficulties in the year ahead because of the dual and, in some respects, inconsistent definitions. If we are going to go down the route that was decided by the committee last week—Parliament has already made a determination on that—the bill will be able to work effectively only with the inclusion of amendment 80. Otherwise, it will be a recipe for chaos.
To say that
"it will be a recipe for chaos"
is to overstate the case slightly. Nevertheless, we recognised that for clarity of understanding for all involved, if someone had been recalled on one ground, the same test should apply. The underlying message is that certain responsibilities go with the community part of a sentence and that there are consequences of breaches. Although there has to be flexibility, there is quite an important contract between the individual and the community in relation to their commitment to participate and to pay heed to the conditions on which they were released.
Amendment 80 agreed to.
Amendment 38 moved—[Johann Lamont]—and agreed to.
Section 33, as amended, agreed to.
After section 33
Amendments 39 to 41 moved—[Johann Lamont]—and agreed to.
Section 34—Effect of revocation
Amendment 42 moved—[Johann Lamont]—and agreed to.
Section 35 agreed to.
That ends today's consideration of the bill.
For the second week running, Bill Aitken's amendment has not been considered.
I am not sure what the query is.
Bearing in mind that only a few amendments remain, I would have no objection to the remaining amendments being considered today, if that is in order.
The procedures for today's meeting have been published. In addition, there may be further amendments lodged. I thank members for attending, and the minister for her co-operation.
Meeting suspended.
On resuming—