Item 2 is our fourth evidence session on the Custodial Sentences and Weapons (Scotland) Bill, for which Graham Ross and Frazer McCallum from the Scottish Parliament information centre are here to assist us. I welcome back to the committee our first witness, Fiona Moriarty, who is director of the Scottish Retail Consortium; she has previously given evidence on other pieces of legislation.
As you know, convener, I came to the committee about a year ago to talk about licensing of the sale of knives, which was being debated under a different guise. At that point, we were very nervous about how constraining and restraining on retailers the proposed licensing scheme could be. However, many of our concerns have been allayed, specifically in relation to sections 43 to 46 of the bill, and we believe that the provisions will not be relevant to the vast majority of retailers that operate in Scotland.
Could the licensing scheme create any problems for responsible retailers that sell not just non-domestic knives but, for example, sporting knives?
A few issues of definition remain. We have had some productive meetings with Scottish Executive officials in the past few months, and we have cleared up a few queries about the definition, which is a bit tighter. As I said, the provisions will not be relevant to the vast majority of what we would understand to be high street retailers that sell domestic or do-it-yourself knives. However, there may be a few grey areas, which will be seen only with the passage of time.
You talk about grey areas. As you know, the need for a licence would not apply to the sale of knives that are designed for domestic use, but the bill does not contain any definition to clarify the differences between domestic and non-domestic knives, nor does it define what constitutes a sword. Are those grey areas likely to cause difficulties for retailers?
They are more likely to cause difficulties for trading standards officers. To take a couple of examples of Scottish Retail Consortium members, John Lewis and B&Q are not the sort of retailers that sell push daggers, death stars, butterfly knives or swords—those are nowhere near the products that they sell. They sell Stanley knives, camping knives, food preparation knives, pen knives, craft knives and carpet knives. If the knives on that second list are classed as domestic or for use in the home or in a DIY environment, we will not be too concerned about the definition of a non-domestic knife. Unless trading standards officers are given additional resources and clear prescriptive detail in regulations, they may give you a different answer.
Is more guidance needed and would it be helpful to retailers? You said that trading standards officers may have difficulties. If more guidance is needed, should it be provided in legislation or in non-statutory guidance for retailers?
Probably in non-statutory guidance. As a trade association we could play a part in that, and I have canvassed all our members. Trade associations are odd bodies. The SRC directly represents retailers but, as a large association, we also represent other retail trade associations. We represent the British Hardware Federation, which represents a plethora of other trade associations and includes a cook shop division. I know that those retailers were nervous about the products that they sell, which takes us back to the convener's point about hunting and fishing.
If they continue to sell those knives, would non-statutory guidance help?
I think so. This takes us back to trading standards. Most retailers have good relationships with their local trading standards officers, and there needs to be a consistent approach to the licensing scheme, which needs to be transparent. We will need plenty of notice so that I can notify my members by running workshops, for example. When I travel round Scotland, I can ensure that if they sell what would be regarded as non-domestic knives, they know what is expected of them and that they should be talking to their trading standards officers. I would give advice and guidance as necessary.
If there is to be a licensing scheme, which types of licence condition would be appropriate and which would you seek to avoid?
We just want consistency. If the regulations prescribe 10 different conditions, they should apply in every one of the 32 local authority areas in Scotland. My members, especially those who trade in more than one local authority area, tell me that if there are different conditions in different areas things become more expensive and it is far harder for them to manage. Local trading standards services can prescribe additional conditions to the licence as they see fit. I do not want to make too big a deal of that, because it will be virtually insignificant for the vast majority of my members.
What would be the significance of having additional licence conditions? A particular council or ministers might wish to place restrictions on marketing or to introduce requirements for identification over and above what is in the bill. What would be sensible? Where should the limit be set? At what point would things get difficult for the retailers?
The two key areas are costs and training. Anything that adds cost and requires a lot of additional training would concern the small number of our members to whom the provisions would be relevant.
The witnesses from the Convention of Scottish Local Authorities estimated that local authorities would probably consider charging £50 or so for a licence. What consideration did the Scottish Retail Consortium give to the impact that that cost, along with training costs, would have on retailers? Does that concern you?
Some of my members would probably not thank me for saying this, but the larger retailers could absorb the cost of the licence, although onerous extra conditions would be a different matter. The ballpark figure of £50 for a licence for one store is neither here nor there. Smaller retailers, some of which will be trading on the margin, will have to think seriously about any additional cost.
I take it that the cost of complying with the licence conditions will be higher than the £50 cost of the licence.
Yes, it will be considerably higher.
Therefore, retailers will consider what they make annually against that cost to decide whether they will continue to trade in non-domestic knives.
If retailers have to install new or different closed-circuit television cameras; new till prompts; new auditing systems, whether computer or paper based; new cabinets; and new security measures in store to ensure that the knives cannot be accessed by members of the public—as well as paying for the associated training—my best guess is that quite a few of them that sell only 10 or 15 such items a year will say that it is not worth while for them to continue to do so.
Do you have an idea how many retailers are in that category?
I would have to go away and think about that. We have done an initial trawl, which showed that roughly 3,000 retailers in Scotland sell a form of knife, which can be a camping knife, a bread knife or meat cleaver. I provided Scottish Executive officials with that information. Given the minutiae of the definition of a non-domestic knife, such as a camping or fishing knife, only a handful of retailers are affected.
This is an interesting line of inquiry. We are worried about the preponderance of people getting knives from abroad, or ordering them by e-mail. If the current outlets consider that the cost of complying with the licence will be too high for them to continue to trade in these items, we might find that outlets decide not to supply small stores and that people are more likely to buy knives abroad or order them by e-mail.
I am not too concerned about that. Reputable retailers will do a cost benefit analysis and decide whether to get a licence to sell such items. Responsible retailers will sell only to members of the public who can demonstrate, within the conditions of the licence, that they require the knife. There is a balance; a reputable customer will explain what they intend to use the product for.
I am concerned that, if people are determined to get these knives but they cannot get them from licensed retailers, the trade will be driven underground.
Following on from Colin Fox's concern about alternative suppliers, I know from when I was farming that many hardware stalls at agricultural shows and markets sell sporting knives. Does your organisation cover such suppliers? Some of them are based in England but they carry out transactions in Scotland. How will the bill affect them?
A number of rural suppliers sell—for legitimate leisure and rural use—non-domestic knives that will fall under sections 43 to 46 of the bill, but they are not members of the Scottish Retail Consortium. Some of them might be members of the hardware and garden retail association and a couple of other associations that I mentioned earlier. I could ask the British Hardware Federation how many stores will be affected. My best guess is that, if they sell a substantial number of products, they will apply for a licence and manage it, as retailers do for many other restricted products.
If you could write to the clerks about that at your earliest convenience, that would be helpful.
Swords might be sold at sporting events that include sword fencing competitions. Because such competitions are held throughout the country, dealers turn up at various venues. They will have a problem in complying with the licensing conditions because their sales are not made from a permanent shop. They might not even have a permanent shop. They might make their living by selling products through the post—for example, to school fencing clubs—or by selling products at competitions. If they have to apply for a licence in every local authority area in which there is a fencing competition, they will be out of pocket. Will that be an extensive problem? People have written to us about the matter, but I wonder how extensive the problem will be.
I am not sure. It will be a problem, given the number of markets, fairs and other activities that are held throughout Scotland in any 12-month period and the number of agricultural shows with stalls that sell swords or other non-domestic knives. I notice that there is no evidence from the Society of Chief Officers of Trading Standards in Scotland, but I would be interested to know its views. I work with trading standards officers a lot and they are the guys who have to manage things day in, day out. I do not want to speak on their behalf, but I think they would say that they are underresourced and that the bill will place extra pressure on them.
Do you think that dealers will stop having stalls?
I imagine so.
If that source dries up, it will pose a difficulty for people who genuinely want to get hold of swords for fencing, highland dancing or whatever.
I think so. The committee will have some interesting times wrestling with Mr Fox's valid point that the illegitimate trade might be driven underground and the legitimate trade might be driven overseas or on to the internet.
Let us hope that somebody who is listening to this discussion will write to us and tell us about that.
I am due to meet SCOTSS on another matter in the next few weeks, so I will raise it with them myself.
I return to swords, Miss Moriarty. The Executive has indicated that people who sell swords commercially will be required to take reasonable steps to confirm that a sword is being bought for a legitimate purpose. What steps can and should sellers take to achieve that aim?
Mr Butler, I will give a bit of a non-answer because, hand on heart, I can tell you that none of my members sells swords, so I have happily left the issue to one side.
I will not indulge in any verbal fencing. Perhaps we will get some information from another source.
I thank Miss Moriarty for making herself available and for the offer that she made to contact the clerks with further evidence for us.
That is a good technique.
The sun will move round, obviously, but if the witnesses would like to wriggle their chairs to more comfortable positions, they should feel free to do so, as long as they do not end up too far away from the microphones.
The Parole Board knows from experience that good assessment of risk and consideration by a body such as the board are effective and that good supervision of offenders is an important part of protecting communities and helping offenders to avoid reoffending.
Thank you for your written submission. I have no doubt that my colleagues will cover most aspects of it.
We welcome the aims of the bill, but there are reservations about the way in which it is drafted that may get in the way of clearer sentencing, public protection and reduction in reoffending. The real issue is whether we can sufficiently target the offenders who present a risk of harm to the public. As it stands, that may not be possible.
How will the bill improve public protection?
As offenders return to the community, there will be proper support for them and monitoring of their behaviour. There will be a focus on the things that are likely to return people to offending behaviour. That has been the benefit of people who are on sentences of four years and longer being on licence. Provided that the support is of adequate quantity and quality, extending its range should assist in protecting communities. Our concern is whether that will be feasible in terms of the entire scope of the bill.
Better public protection requires resources. The committee should remember that risk assessment and risk management are opposite sides of a coin—they are inextricably linked. If you are going to consider following the assessment of risk by the management of that risk, you need to target the resources at the people who represent a risk of serious harm. The bill's current provisions spread the resources too thinly.
I note in the Parole Board's written evidence that you feel that the bill has not been drafted correctly. Will you expand on that?
It concerns matters of technical detail in the bill. The way in which some of the sections are numbered and the sequence of the sections mean that they are slightly at odds with what is intended. Those are drafting matters. We also have concerns about whether the Parole Board can conclude its considerations and make a determination within the timescales. We suggest that the bill's wording could be reconsidered to ensure that it does not create a cul-de-sac for the board.
That is helpful. The bill proposes to reduce the number of Parole Board members who are involved in a tribunal from three to two. The committee is aware that your organisation has expressed concern about the way in which that might limit breadth of expertise, which is one of the Parole Board's strengths. You have made it very clear that the chair or convener must have a legal background, which limits the tribunal to one other member. Will you elaborate on that? It seems a particularly important part of your evidence.
The board is concerned about an intention in the financial memorandum to make what we consider to be a significant change to the way in which the board operates when it sits as a tribunal. It currently involves three members of the board and is chaired by one of our legal members. In terms of European law, that is important for our judge-like function. It is important that we are fair and impartial when we deliberate over cases and that we give them the fullest consideration.
I presume from what you say that the Parole Board would like tribunals to have more members and for there to be an uneven number of members, to allow tribunals to come to a decision when there is a spread of views.
We do not argue for more members on tribunals. One issue for the board will be the increased demand under the bill. To be honest, at present, we have to work hard and are struggling to keep pace with demand. An increase in the required number of members on tribunals would add to that issue. Membership of three is a fairly consistent position for tribunals—indeed, the name suggests that number. We certainly think that it is valuable to have an uneven number of members to allow for a majority decision.
Basically, you feel that the number should continue to be three, as is the case at present.
Yes.
You commented on European legislation. Will you explain clearly your position in relation to fair trials under article 6 of the European convention on human rights?
Everything that the board does must comply with European regulations and legislation, so we are bound in our decision making to act in compliance with article 6 of the ECHR. If we do not, we would most certainly be liable to judicial review, in which our position would be difficult to defend. We must ensure that the board's decision making complies absolutely with the right to a fair trial.
My questions are for Professor Hall and Bob Winter of the Risk Management Authority. The RMA has expressed concerns about the proposed requirement to conduct a risk assessment of every offender who receives a sentence of 15 days or more. You say that that is not in line with best practice. As you know, the bill would make risk assessment crucial to release decisions on all prisoners who are sentenced to more than 15 days. For the record, will you set out your concerns in a little more detail and clarify the exact difference between the terms "risk assessment" and "risk management"?
The field of risk assessment is complex, with terms that tend to be used without careful definition on occasion. We need to be clear about whether we are talking about the risk of reoffending, the risk of harm or the risk of serious harm. Those are three fundamental definitions that need to be considered in examining the proposed legislation. We welcome the recognition that risk assessment is incredibly important as a basis for action plans on how to manage offenders to prevent serious harm. That, however, is at one end of a continuum—it is probably important to see risk assessment as a continuum.
So you are saying that if sentences are as short as 15 days, or even under six months, you cannot go into the necessary detail that would qualify for the definition of a serious risk assessment and the risk management assessment that flows from that?
I think that I am saying more than that. We would probably not get much information even about the risk of harm posed by an offender who was serving a sentence of less than a year. If we are talking about risk of serious harm, we need more opportunities for gathering the information on which we make our analysis.
Does the bill as currently drafted give the public a false sense of security because they might perceive that all prisoners have been risk-assessed and risk-managed and therefore everything is fine?
It might give the public a sense of security, but it would probably give the rest of us the absolute heebie-jeebies because we know that the water would fall through the bottom. That is important in the light of your earlier point about the aims and objectives of the bill.
Does the threshold of 15 days or more need to be changed?
Yes. Like many other agencies that have made submissions to the committee, the Risk Management Authority feels that if you are interested in risk assessment, the cut-off point should be a one-year sentence. The aim of the bill is not just to assess; it is to manage. It takes time to manage actions in the custodial setting as well as in the community setting and to gather the information that flows from each to make everything make sense.
As you said, it is a continuum, so the timeframe cannot be abbreviated as the bill proposes.
If you abbreviate it, you make it a nonsense. Our concern is that talking about risk assessment as the bill does might lower the whole credibility of risk assessment. As one of the submissions to the committee said, we would then have another quango talking nonsense.
I will not comment on that, but I hear what you are saying.
The profile of the prison population who are in for shorter sentences is significantly different from the profile of the others. There must be a sense of where the priority lies when protecting the public from harm, and it does not lie at the lower end of the offending scale.
The Parole Board is charged with determining whether there would be a risk to the public if someone were released. We are significant consumers of risk assessments, which are undertaken not by the board but by a variety of professionals we make use of. Risk assessments are included in the dossier that helps us to reach our conclusion on the matter. We also have a role in risk management, which is exercised through the conditions that we apply to a licence. Those conditions enable and assist supervising officers in the community to manage the risk as effectively as they can. Our concern with the bill is that if people who have been in prison for a very short time are referred to us to decide whether the period in custody should be extended, we might not have information about how that view about risk was taken that would enable us to take a fair and reasonable decision. We have real questions about the quality of that information.
The Parole Board made that point clearly in its written submission, but it is good that Professor Cameron has aired the issue today. There seems to be a difficulty on that issue.
Another problem is getting through the process in the time that is available at the lower end of the sentence level. If we have just over 15 days, we will have very little time to obtain an assessment and, if the judgment is to be done fairly, have it considered properly by the board. By that time, the offender will have gone through the sentence and the matter will cease to have relevance.
The bill will provide not just an added burden but, in a sense, a burden that the board will not be able to deal with because, if the information the board receives is lacking in quality and relevance, the board's involvement will, frankly, be useless or of little use. Is that what you are saying?
In most cases, it will be difficult to found a judgment on that very thin information and to be seen to demonstrate that we have reached a reasonable and fair decision.
I want to develop that line of questioning on resources. On the capacity to carry out assessments, the Parole Board's evidence takes a slightly different angle from that of the other organisations from which we have received evidence. I was quite struck by the Parole Board's written submission, which states:
In that situation, I think the sentence would have ended. Our concern is that we will need, in a very short time, reports from a variety of sources, not least of which will be a home background report from social workers in the community so that we know where the person will go and whether it will be suitable.
What proportion of reports are late for one reason or another, often because of circumstances beyond your control?
I would find it difficult to give you a percentage figure for that. Social workers in the community are working very close to the wire turning reports around in time for our meetings. In the great majority of cases, we have the report to hand when we consider a case, but it is not infrequent that a report will arrive in what we call our second bag, which arrives only a few days before the meeting at which the case is to be considered.
The other risk is that the situation could be open to challenge if a decision is not reached within the required timescale—in the future, by the end of a custody part of the sentence; at present, by the end of a particular stage in a sentence.
Let us be clear. It is your view that, under the bill, the person would, nevertheless, be released?
Our view is that if the custody period had ended, they would be released.
So, simply because of the number of people involved and the short timescales involved in sentences of less than six months, a fair number of individuals could be released at the end of the custody part of their sentences without risk assessments of them having been carried out.
That would be the danger in complying with the provisions in the bill.
It depends on what the bill says about what happens when someone reaches the end of the custody part of their sentence and something has not happened.
As the bill is currently drafted, the Parole Board would have to reach its determination prior to the end of the custodial part of the sentence. If that were changed so that the board had only to commence consideration of the case by then—there would be debate about the appropriateness of that—the situation might be different. If we have to reach our determination before the end of the custodial part of the sentence, the process will have to begin very early so that we can ensure that all the information is available to allow the board to meet and conclude its consideration in time.
Thankfully, we have advisers who will be able to get the information to help the committee with that practical question.
What you describe applies, at the moment, to sentences of over four years. When someone who is serving less than four years reaches the halfway point, they are automatically released. If someone is serving a sentence of over four years, they may be released at the halfway point if the Parole Board decides that that is an acceptable risk. If it decides that it is not, the person will be released at the two-thirds point, but still on licence.
There is nothing in the bill that would allow someone who was sentenced to spend more than 50 per cent of the sentence in custody to ask to be considered for release at the halfway point. The custodial part would be set at the point of sentence by the judge.
I have a final question, on a slightly different point. It concerns the setting of conditions. As I understand it, if the custodial part of a prisoner's sentence is set at 75 per cent, the Parole Board has a duty to set conditions when the prisoner is released, but there is no comparable duty if the sheriff sets the custodial part at any proportion other than 75 per cent. If someone were released from custody after serving 50 per cent of their sentence, no conditions might be set. How would that operate in practice?
I think that my understanding is the same as yours. We are not sure what is intended. It seems that people sentenced to six months or less could be released on a very simple licence—to be of good behaviour and to keep the peace. That is a licence for any honest citizen, but how meaningful will it be when there is no supervision? We have to help the offender to understand what the licence means. Simply issuing a licence without setting any other conditions would, we think, be of dubious value.
The conditions are crucial to good risk management. Risk management is about helping people to get their act together. We do not want to confuse that purpose with that of bringing people back because of nuisance behaviour. I accept that such behaviour is an example of reoffending, but it will not necessarily cause serious harm. That is where definitions come into play.
The formal definition of a short-term sentence is anything less than four years, if I understand correctly, but we have been talking about sentences that are considerably shorter than that. Whether in this bill or elsewhere, there might be scope to change the terminology so that we all know what we are talking about when we talk about short-term prison sentences. What do the Risk Management Authority and the Parole Board think the definitions should be? Is a short-term sentence 15 days, as the bill says? Is it three months? Is it six months with a supervision element?
It depends on what you are trying to achieve, but we should all be using the same definitions.
I largely concur with that. Bear in mind that someone who, in accordance with the principles of the bill, was sentenced to a year would, in most cases, serve six months in prison. That is about the minimum length of time needed for any meaningful conclusions to be reached. Sentences shorter than that can make forming a view about risk inordinately difficult.
Professor Hall, I thought I saw you nodding at that. Could you say, for the record, whether you agree with Professor Cameron's comment about a six-month period?
Yes. With a sentence of a year, it is important for the judge to decide how long the person should be in custody.
What I am picking up from you is that you think that even a year might be too short a time to do a risk assessment and that there might not be the resources to do a needs assessment for everybody. What, then, is our view on combined sentences? Are we saying that we should not be considering such sentences for people who are being sentenced for a year or less and that they should get sentences in the community—or should they just be put in jail with no provision for supervision afterwards?
No. The principle of risk management is important and is inextricably linked with risk assessment. We feel that the combined sentences are important and that there should be a period in the community. My background is in psychology. If you are trying to change behaviour, you do not do it only in laboratory conditions; you have to let the person generalise it into the outside world. Helping somebody to talk about their alcohol behaviour in prison is one thing; it is quite another when they go back down the road to the pub.
Even though it may be difficult and we may need a lot of resources to back it up, do you still believe that that is the right way to go?
It is the most important part of the bill.
What discussions have you had with the Scottish Prison Service about how the Risk Management Authority could contribute to constructing the risk-of-harm assessments required by the bill, with regard to validation, training and setting guidelines, for instance? Is there any methodology for doing that?
Yes. We are in close touch. As you know, I came from the Scottish Prison Service and I have retained a lot of contacts there. The arrangements that are already in place in the Scottish Prison Service for risk assessment and management are quite well developed—certainly as far as risk management groups for the risk-of-serious-harm people are concerned. Integrated case management is now used and the sentence management process has been developed into a process whose remit includes a wider range of individuals. We have discussed that in quite some detail with the Scottish Prison Service in relation to the bill, in relation to our own arrangements and in relation to the plans for the implementation of multi-agency public protection arrangements, because we obviously all need to work closely together on those issues.
Thank you for your helpful answer.
You talked clearly about developing stages. One issue that is emerging at this point in the evidence-taking session is the prison population, which you said we need to examine. Did you mean that there should be evaluation of risk management prior to sentencing, when someone is not at risk of causing harm to the public but is likely to be given a prison sentence?
I do not remember using the phrase to which you refer. A great deal of information is available around pre-sentencing, and it is often of considerable use to people who carry out assessments to assist the courts to decide on sentences. However, that is not an issue for prisons to consider.
Earlier, you talked about an area that would give us the heebie-jeebies. Both organisations seem keen to stress the point that risk management is not and never will be an exact science. Given the levels of reoffending, I would like to know how accurate risk assessment is at the moment. How realistic is it for us and the general public to expect the Prison Service and criminal justice social work to accurately assess the likelihood that an individual will cause harm to the public?
In any field—be it weather, cancer survival rates or reoffending—risk assessment is not much better than chance. That is why, when you are seriously concerned about the matter, you have to go beyond a probability estimate to much more detailed consideration of the particular situation. You cannot put numbers on those situations. They involve factors such as the age of a child who is in a certain situation with a person who is drunk. You have to get into real-life areas of risk management.
When you assess offenders, what follow-up do you do to estimate or record the accuracy of that assessment? Do you keep records of how accurate your assessments were or how appropriate and effective the warning that you gave to the community was?
In our directory of risk assessment tools and techniques, we say that we will approve only tests that have been done using validated tools that have been shown to have a better-than-chance rate of predicting reoffending.
You are saying, quite rightly, that there is an element of chance, and that the environment that the offender is going back into and their preparedness to address their behaviour are also important. However, does the bill put too much expectation on the likelihood of the person's behaviour being changed?
That is an important point. The public would like the issue to be black and white and for us to be able to say that someone is either a risk or is not, in the same way that we would all like to know whether we are healthy or not or whether it is going to be a good or a nasty day. Expectation management is incredibly important. The bill's intentions are good, but they could lead the public to think that the situation is a lot easier than it is.
I am interested in your use of the phrase "expectation management", given that we are talking about managing the risk of offending.
Would it be helpful if I gave you the figures from research that the Parole Board did recently?
You tell me what they are and I will tell you if they are helpful.
Okay; that is fair enough.
I am interested in the research; it is important. Can I take it that since you have focused on longer sentences—
We did so because the Parole Board is currently involved only when sentences are four years or longer.
I am anxious to stress that we are well aware that reoffending rates are much higher among people who have served shorter sentences than they are among those—
Yes, and the offences are almost certainly less serious. As Mr Winter said, we are talking about people who are in for three months, then they get out and end up reoffending, but some of it is not desperately serious.
I understand that. Not only are there lower levels of reoffending among people who have served longer sentences—if that is the way to put it—but, as you have made clear, reassessment is likely to have a greater effect with longer sentences than shorter sentences. At what intervals is the risk that offenders pose reassessed?
Professor Cameron is a former social worker and will be able to tell you that.
One issue is that, once someone is out on licence, the supervising officer effectively needs to keep the situation under review. Is the individual complying with the licence? Do they need to go into another programme, because they are finding some things difficult? Do other resources have to be brought to bear?
A thought arose in the context of Mr Fox's questions. The position that we are in with respect to risk assessment and risk management is that the Risk Management Authority was established essentially as an acknowledgement that we did not have an adequate body of research. Different professions used different tools and courts received inconsistent reports, which were sometimes produced by highly idiosyncratic professionals doing their own thing.
Sure.
As you know, the preparation of a risk management plan is a statutory part of an order for lifelong restriction. The plan must be drawn up within nine months of the sentence being given and must be approved by the Risk Management Authority. Typically, it is prepared by the Prison Service or the state hospital, because the sentence is served in a custodial or a secure setting. Each year, there must be a review of how well the plan is working. If it contains any significant changes, such as a lowering of security or a proposal to transfer the prisoner or grant them escorted leave, for example, it must be resubmitted for approval. The plan is worked on continually.
You spoke of the process as being a continuum. I take it that both now and under the bill there will be opportunities to carry out risk assessments as frequently as is necessary. In other words, assessments will be done at intervals. Even when a prisoner is in custody, it will be possible for another assessment to be done.
The bill does not lay that out, but under our enabling legislation—the Criminal Justice (Scotland) Act 2003—our responsibility to approve risk management plans is not confined to orders for lifelong restriction. Any other risk management plan can come under the same structured format, when that is thought appropriate. In relation to serious offenders, that is an interesting possibility.
Another aspect of risk assessment is the evidence that we get from home leaves and placements, which are important to the Parole Board. Particularly if the offender is on a longer sentence, they may spend time going out daily from prison to a placement for up to five days a week, and they will also have home leaves. Those provide some of the evidence that Roisin Hall talked about, to determine whether the offender is putting into practice what they have learned from programmes in prison.
I take it that the standard risk assessment includes things like a home background report and reports from the prison and criminal justice social work. Is there a case for using a standard risk assessment for all prisoners or is there a need for a variety of assessments to cover the range of short-term and longer-term prisoners?
It is necessary to have a portfolio of levels of intensity. For prisoners who have complex patterns of offending behaviour, we must accept that we want not only to have a general discussion but to be able to use specialist techniques that examine their particular deviant fantasies or instances of domestic abuse, for example. A number of specialist techniques should kick in when we consider the risk of serious harm.
We have now got into an area on which the committee would love to conduct an investigation and review, but I ask members to focus on the specifics of the bill.
I hope that my question will be focused. What would the witnesses' reaction be if the bill was amended so that there was no requirement for a risk assessment to be carried out on offenders who were sentenced to a custody and community sentence of less than six months? Would that make a substantial difference to the risk of harm to society? I pick up from the witnesses' written submissions that a risk assessment for such prisoners is an unnecessary diversion of resources. Would the bill be better if it did not have that requirement?
That would make a fundamental contribution to some of the problems that we are flagging up, although there are other things that might be quite useful.
It would certainly take a substantial number of people out of consideration, which would be one way of focusing attention on the areas that most require it.
The RMA indicates that there would be a high level of breach of licence among offenders who are on shorter sentences without a requirement for supervision—that is, those with a custody and community sentence of less than six months. What type of breach could there be? Would it simply be disorderly or bad behaviour, or would something more specific be involved?
We can speculate that the offending of many people who are on short sentences is often of a relatively minor nature, although I do not want to play down the impact that that can have. It is often repeat offending behaviour. People are given custodial sentences because other disposals have been tried. The most likely condition to be breached is the condition that someone is to be of good behaviour.
I agree. They would be largely nuisance offences—they may be associated with drinking or drug taking. In some cases, such offending is almost incidental, because a person leads a sufficiently chaotic lifestyle. Much of it is not instrumental offending.
For the large majority of such cases, local authorities and the Prison Service will have risk assessment mechanisms. If it is not determined that a case is to be referred to the Parole Board, no conditions will be set on the licence and the prisoner will be released. Will that make any impact on the cohort of individuals who already receive very short-term prison sentences?
As I said, being released with a licence that we understand would say simply that a person should be of good behaviour is no different from the situation that applies to us all, although the licence has the slightly added feature that it is part of a sentence. For many offenders who are—sadly—in and out of prison frequently, comprehending and absorbing what a licence means and using it as a tool that makes them say, "I really mustn't go back to prison," will be inordinately difficult, given the pressures that many of them face. As Roisin Hall says, drugs and, in particular, alcohol are often a significant factor in people's offending behaviour.
I will ask about recall and revoking licences. Will you help us with apparently contradictory sections of the bill? Section 21 talks about recalling people to prison for any breach if they are out on licence, but section 33 requires the Parole Board to rerelease someone unless they pose a risk of serious harm. Will that lead to a revolving door whereby people who are released because they do not pose a risk of harm are then brought in because, strictly speaking, they have breached their licences?
I say for the record that section 31, not 21, concerns recall to prison.
I beg your pardon.
Colin Fox is right. A concern is that although the bill applies a single test to all situations of serious harm to the public, the test for recall is that a licence has been breached and that the Scottish ministers consider that revoking the licence would be in the public interest. Those tests are not necessarily at odds with each other, but they are different. The potential exists for people to go to prison on the application of one test, after which the board has no alternative but to release them because the serious harm test is not met. The serious harm test is higher than the tests that we currently apply—other than for people with life sentences—when an offence has been committed and there may be risk.
So you think that the provisions appear to be at odds with each other.
Yes, they create the risk of people going in and out of prison.
If the provisions are left as they are and you simply have to say, "This person is not a serious risk," so that the person goes back out of prison, is there a danger that resources could be diverted? Your time and effort would be better used on other cases.
That is a danger. Such decisions are important, as they are about people's liberty, so they would require full and proper consideration by the board. That would be another demand on the board's time. As things stand, we have considerable pressure on our time. We estimate considerable additional demand on the board, as the financial memorandum says. I know that members always hear people say that they need more resources, but if we are to deliver what Parliament determines, the resource implications will certainly need to be examined carefully. Within that, we will need to consider the best use of the resources that we have.
My question is for Professor Cameron and Mr Campbell of the Parole Board. What role do you envisage victims playing in the board's decisions on whether prisoners who have been referred by the Scottish ministers should be released before three quarters of their sentences have been served and on whether to rerelease prisoners recalled for breach?
The board currently receives written victim statements in cases in which people have entered into the victim notification scheme, and we envisage that that will continue. The board always takes those statements seriously but, in reaching our decisions, we must be seen to be fair and impartial. That is a requirement under article 6 of the ECHR. The statements form part of the decision making, but we must weigh up all the factors.
Mr Campbell, do you want to add to that?
The only way in which we can take victims' views into account is in considering the question of risk, but there is sometimes a misunderstanding about that. Understandably, some victims think that an offender should never get out, but we have to consider whether the risk is acceptable.
Is it not the case that a victim could seek an interdict of some kind, such as a protection from abuse interdict? For example, if the case was one of domestic violence in which we wanted the offender to keep away from a particular person, it would be open to that person to seek an interdict.
Yes—under the appropriate legislation.
The person could not seek an interdict that would change the board's decision, but they could look to other legal remedies to protect themselves.
Yes—there are other legal remedies.
Absolutely. The great majority of victim statements that we receive, many of which are extremely touching, say that we should not let the offender out. We must balance that view with the advantage that there may be in releasing someone before the very end of their sentence, so that their re-entry into the community is supervised. That may be difficult for victims to understand, but for their longer-term protection and that of other people, it could well be the best action to take.
Will the Parole Board write to the committee to explain what controls and support systems it thinks should apply in cases in which a victim says that they do not want the person to be released but you decide that it is better to get them back into the community under supervision? It would be helpful to have a statement of what you consider supervision should be.
We can write to you on that. The question covers a wide range of circumstances. Every case is different and the experience of every victim is different, other than that they have been a victim.
You talked about, and mentioned in your written submission, the need for a definition of supervision. I think that the RMA mentioned the issue, too. I am turning the tables and asking you to give us a few suggestions on that.
Our legal advice is that a growing number of oral hearings are likely to be required. Eventually, oral hearings could be required in the great majority of cases. We need to determine whether those oral hearings will be heard by three members or in different circumstances and how we will construct the process, but it is likely that there will be significant resource implications for us.
We already hold oral hearings for recalled prisoners as a result of the Smith and West decision. Of course, the tribunals that we hold for life prisoners are also oral hearings. That situation remains unchanged.
The point of the question is that every bill requires a financial memorandum and the committee is charged with the duty of finding out whether it covers all the costs that a piece of legislation might incur. Perhaps you could send us a short note on the matter.
I wonder whether the panel can say something about curfew licences, which, as I understand it, will come into operation for any prisoner who is sentenced to three months or more. Might they also give rise to the risks that Colin Fox highlighted? For example, if an offender breaches a licence after their four weeks of custody, the matter will come back to the board, which will have to carry out a risk of harm test. Theoretically, someone sentenced to a year can serve four weeks in custody and then be subject to quite a normal licence, even though other conditions might well be set.
Curfew licences are useful in bringing a degree of control and order into people's lives, and the board will, from time to time, apply curfew and electronic monitoring measures. However, the feeling is that their effect can diminish the longer that they are sustained and the longer that people have to abide by their conditions.
I thank Professors Hall and Cameron, Mr Campbell and Mr Winter for their full evidence. If the RMA wants to send us a brief note on any matters of relevance to the bill, the clerks will be happy to receive it.
Meeting suspended.
On resuming—
I welcome the final panel of the afternoon, who are Dr Andrew McLellan, Her Majesty's chief inspector of prisons for Scotland, and John McCaig, Her Majesty's deputy chief inspector of prisons for Scotland. You will understand the slight delay because of the interest in the evidence that we have received this afternoon. We look forward to receiving your evidence.
The impact would be enormous. I am grateful that you started on overcrowding—whatever you wanted to ask me about, I was going to talk about it.
Thank you. I also asked about the impact on prison governors and officers in the front line. Have you any views about how the increases could affect them and their ability to perform their duties?
In my annual report, which was published last month, I laid out nine evils of overcrowding. Significant among those are the pressures that it puts on all prison staff, especially when it is combined with what seems to be the inexorable increase in the duties that prison staff at all levels must perform, and with what appears to be a reduction in the number of prison staff. It is clear to me from what prison staff, prison managers and prisoners have told me that overcrowding makes the daily work of prison staff much more difficult. In particular, it makes extremely difficult the personal engagement between staff and prisoners that could be a real strength of the prison system but which is impossible as long as prisoners are locked behind their doors for hour after hour.
I presume that your response is based on interviews that you have had with prison governors and prison staff throughout Scotland.
Yes.
I think that you understand the duties that will be placed on the Prison Service and local authorities to risk-assess every prisoner who serves a custodial sentence of more than 15 days.
If everything else stays the same, there will be a huge impact through the increase in the number of prisoners who share cells. At the moment, the Scottish Prison Service tries, as far as possible, to give prisoners who are serving long sentences cells of their own. However, increasingly, it is not able to do that. The figure that you have just cited would make it impossible for the Prison Service to provide prisoners with cells of their own.
Is there anything positive in the bill with regard to the situation? You hinted that there may be some positives in the bill; this is your opportunity to say what they are.
There is in the bill terrific merit that I welcome unreservedly, although I have reservations about overcrowding. That merit relates to the opportunity that the bill provides for supervision in the community for prisoners on release. I have often reflected that the most important time in a prison sentence is the moment when a prisoner leaves the prison gate. Under the bill, short-term and long-term prisoners—as they are now described—will not be released into nothingness, which is an extremely important gain.
I do not want to put a dampener on your enthusiasm, but I draw your attention to the supervision requirements for which the bill provides. Section 27 states that supervision will be in place only for a prisoner who has received
I accept that and will say a little about risk assessments in a moment. The possibility of supervision for half of prisoners is a great deal better than the present situation. I would be grudging if were to say that, because the bill does not make provision for everyone, it is not to be welcomed. Later there may be discussion of the value of supervision for offenders who have received sentences of less than six months.
I want to look at the connection between rehabilitation in prisons and overcrowding. Over the weekend, I was struck by a news report about staff on duty at Barlinnie prison in Glasgow on Saturday night. I know that weekend evenings in prisons are long, starting at 4 or 5 in the afternoon. The report reminded me of two things: the evidence from the Prison Officers Association and something positive that your annual report flagged up—that 97 per cent of prisoners or offenders rated relationships with staff in their prisons as "ok or better". It seems to me that a great deal of attention is focused on and a lot of time is taken up by developing professional skills to be brought to bear for the benefit of offenders, which is a part of the Prison Service's work that works.
I am glad that you singled out that astonishing statistic from my annual report. It shows that prisoners acknowledge the good relationships that exist between prison staff and prisoners.
Would it be fair to say that against such a background and taking into account the relevant facts and figures, it would be somewhat utopian to expect a turnaround in reoffending behaviour or better rehabilitative care?
That would be the case if there were no intention to provide additional resources to cope with the additional prisoners. I do not know whether there will be additional resources, so I do not know whether it would be utopian to expect such a turnaround.
I want to follow up on what Colin Fox said. I am concerned about prisoners with very short sentences who repeatedly go through the revolving door. Earlier, we heard how such prisoners can be released on licence, break their conditions and end up back in prison. The Parole Board can say that such people do not pose much of a risk, so they will be let out of prison again and so on. Prisoners on very short-term sentences of under 15 days are not supervised or supported in the community after prison. In that context, I am concerned that there is a disproportionate impact on women prisoners, who often go to prison for fine defaulting. Perhaps we are failing that section of the prison population with the proposals that have been made.
I have always tried to draw attention to the different circumstances of women offenders and to the different provision that the Scottish Prison Service attempts to make for them. Overcrowding is as damaging for women as it is for men. New accommodation has been built at Cornton Vale and nearly all convicted women and most women offenders are now detained in Cornton Vale—although, as members know, there is still a unit in Inverness and another in Aberdeen.
I fully accept what you say about the change in what many women are being sentenced for.
If people are imprisoned for 15 days or less, they might get—apart from a deprivation of their liberty—a health assessment and a bit of advice on how to improve their health when they leave prison. That will be it. That will not be because of any unwillingness on the part of the Scottish Prison Service; it will be because of the kind of thing that Roisin Hall mentioned earlier. The assessment of needs and the delivery of what might be needed take a great deal longer than 15 days. It would be naive—no, that would be an impertinent word to use—it would be unreasonable to expect prisons to make a significant difference in the life of a convicted person in 15 days. However, I cannot imagine that people are sent to prison for 15 days with that hope in mind.
I cannot imagine why people are sent to prison for 15 days at all. One would think that other disposals were open to the bench.
I think that you are allowed to say things that I am not allowed to say.
Okay.
A little while ago, I agreed with Mr Purvis's suggestion that the bill is unlikely to make a significant difference for people who are sentenced to six months or less in prison. However, if appropriate resources are in place, it could make a significant difference to the reoffending behaviour of people who have the opportunity to engage in the new continuity between prison support and community support that the supervision provisions in the bill will make possible.
Maureen Macmillan has rightly asked about reoffending. The levels of reoffending are highest among people who are serving shorter sentences. Realistically, what can the Scottish Prison Service achieve with young men and women who are in the care of the service during short sentences?
You will know that the Scottish Prison Service itself believes that it can achieve nothing for people who are sentenced for less than 12 months. I have seen no evidence to contradict that.
I know that, because when we visited Low Moss the governor made it perfectly clear to me that we expect an awful lot of our Prison Service when we send young men to prison for three months and then send them straight back to where they came from—I think that he mentioned Milton in Glasgow.
I can answer the question on different levels. First, my job is to inspect the treatment and conditions of prisoners. It is not for me to assume that I know more than judges. I say straight away that judges know more than I do about the right results of prison sentences. However, health care professionals in prisons, prison governors and my own eyes draw to my attention the increasing number of prisoners who have some kind of mental illness and are seriously ill. I ask a lot of questions, but there is only one answer to the question, "Will prison make their mental illness better?" If their mental illness is the cause of their offending behaviour, their prison sentence is perhaps not justifiable.
So we are talking about people with mental health conditions, fine defaulters, under-16s and the growing remand population. Those people could be dealt with through alternative means.
It is difficult to answer the question, "Why should they be in prison?" Addiction is at the centre of most offending. If we were concerned only with addressing their addiction, they would not be in prison, but there are other questions. How do we address the harm and damage that they have done? How do we address the needs of victims? How do we prevent other people from committing offences?
Statistics show that the alternatives to custody have a far greater effect on preventing reoffending. Are you aware of those figures?
I questioned something that Maureen Macmillan said, so I hope that I am allowed to question something that you said as well. Your comment about the statistics is true of drug testing and treatment orders and projects that specifically address addiction, such as the 218 project in Glasgow, but I am not certain that the statistics on community service orders and other punishments in the community show as clearly as we would hope that such punishments are more effective at reducing reoffending.
In conclusion, I take you back to the question that I started with, which was about the increases in prison numbers. Given your remit, can you recommend one thing that would help to reduce overcrowding in prisons?
We need to find the way to break the cycle. The use of work in the community as a punishment is not adequately funded because there is a sense that there is no public confidence in it. That might be driven by the press, which contributes to the absence of public confidence. Judges decide not to use alternative punishments because they are not properly funded but, in turn, that is because the public do not have confidence in them.
I want to correct myself. This might give you an opportunity to have a go at something that I say as well, just for neatness. I was incorrect when I said that half the average daily prison population serves less than six months. I refer to Sacro's evidence, which states that 48 per cent serve less than three months and 80 per cent serve less than six months. Only a small proportion of offenders will be subject to supervision in the community when they are released. Does your view that 20 per cent is better than nothing still apply?
It is for that 20 per cent of offenders that supervision is likely to deliver the best results, so it is valuable. It should not be thrown away.
Thank you for coming to give evidence this afternoon. I apologise for the slightly delayed start, but obviously the committee goes with the flow when it gets a large volume of evidence, as we had in the previous session.
Meeting continued in private until 16:59.
Previous
Interests