Good morning. I remind everyone to switch off their mobile phones. We have an apology from Angela Constance, who is attending a funeral. She might join us later.
The Criminal Justice and Licensing (Scotland) Bill is a wide-ranging piece of legislation that takes forward many of the Scottish Government's priorities. In my opening statement, I will not cover everything that is contained in the bill, but I want to talk about a couple of very important elements.
That is helpful, Mr MacAskill. We are unlikely to conclude our consideration of the bill today, and other questions will arise. We will put them to you in writing for answer over the summer recess—when I am sure you would otherwise only be enjoying yourself anyway.
They will not apply to people who are under 18.
Some people have told us that they consider section 1 incomplete.
If people feel that it is incomplete, we will be more than happy to take on board any recommendations from the committee. Such things will always have to be flexible, because changes will occur in society and in people's perceptions. We have set down the parameters within which the people who are charged with the function of dispensing justice should operate.
We have to consider public perceptions, and I fully accept that they may sometimes be slightly detached from reality.
We have embarked on a journey, and the legislative framework will assist us. A start has been made with the way in which sentences are announced in court; they are now made clear to everybody. Such ideas came in with the Custodial Sentences and Weapons (Scotland) Act 2007; people now realise how long an offender will spend in prison and what issues will be dealt with in other ways.
Our questions also impinge on aspects relating to the Scottish sentencing council. I invite Bill Butler to pursue that line.
Good morning, cabinet secretary. As you will know, the committee has heard conflicting evidence on whether sentencing is inconsistent. Do you believe that there is significant inconsistency in sentencing? If so, to what do you attribute that?
The Sentencing Commission for Scotland raised the issue of inconsistency in sentencing, and we are building on its comments. Equally, the Crown has mentioned difficulties in relation to judge shopping, for example. As the convener suggested, the public perceive—although their perceptions may not reflect the reality—that sentencing is inconsistent. Justice has not only to be done, but to be seen to be done. Building on the comments of the Sentencing Commission will be the way to go.
You are right to say that public perception is powerful and must be taken account of, but can you provide the committee with details of academic research that shows that there is inconsistency in sentencing?
The Sentencing Commission for Scotland concluded in ‘The Scope to Improve Consistency in Sentencing':
I do not doubt that. However, when we questioned Mr McLeish, the chair of the Scottish Prisons Commission, he was unable to come up with much in the way of academic evidence that proved that there is inconsistency. You said that there is such evidence, ‘limited though it is'; can you forward to us the academic evidence that persuaded the commission and then you that there is inconsistency in sentencing?
I cannot second-guess the McLeish commission; we have founded our approach on the conclusions of the Sentencing Commission for Scotland, which was an august body that contained senior figures, including senior members of the judiciary. We are building on their comments. As we have said, factors other than inconsistency are involved. However, we think that there is disquiet among the public about inconsistency in sentencing, which must be tackled, whether it is based on anecdotal evidence or reality. The Sentencing Commission for Scotland said publicly that there is an issue. We are predicating our position on that view.
The provisions on the proposed Scottish sentencing council have attracted criticism. It has been argued that they could undermine the independence of the judiciary. It was suggested that the High Court will be stripped of powers, which will be passed to a non-elected, non-judicial body, thereby giving rise to concerns about compatibility with the European convention on human rights. How do you respond to those criticisms?
There is no substance to such fears. It is perfectly clear that the approach is compatible with the ECHR. Not long ago, the Parliament enshrined in statute the independence of the judiciary. The Government intends neither to go against the will of the Parliament nor to interfere with the independence of the judiciary. We made it clear that the sentencing council would only set guidelines and would not give directions. The understandable concerns that might exist among the judiciary can be allayed; it is clear that the sentencing council will not interfere with judicial independence and will not be incompatible with ECHR, given its limited powers.
It was suggested in a written submission to the committee that the creation of the Scottish sentencing council would be objectionable on constitutional grounds. How do you respond to that?
Given that we do not have a written constitution in this country, I find it hard to understand where the person who expressed that view is coming from. The approach is not incompatible with ECHR and the council will not interfere with the independence of the judiciary. Such fears are unfounded. We have made it as clear as we can do that we will not interfere with the ultimate responsibility of each sheriff or judge to make the decision that they think is appropriate to the specific offence of the individual offender who appears before them.
The make-up of any sentencing council is not the point. It has been put to the committee that it would be unconstitutional to take responsibility away from Parliament, ministers and the appeals court—that is the point that I am trying to make. I am sure that the cabinet secretary will have read the Official Report of the committee meeting when members of the judiciary and witnesses who came with them gave oral evidence. The constitutional issue is important, and I would like to hear a Scottish Government viewpoint on it.
I just cannot see the basis on which the sentencing council could be viewed as unconstitutional. It will not interfere with the independence of the judiciary and it is clearly intra vires. I do not understand the difficulties that people have with it or the question of its being unconstitutional. Ultimately, that is a matter for lawyers, whether our Government lawyers, the Lord Advocate or, indeed, the Parliament's lawyers—as we have seen in recent events. They will decide whether the bill is intra vires, but the fact that the bill was introduced with a clean certificate seems to me to indicate that nobody views it as anything other than perfectly constitutional. I therefore cannot understand where the problem arises.
Convener, perhaps we can furnish the cabinet secretary with an extract from the Official Report of the evidence that we took on the issue, and ask for a response on it.
By all means. I am sure that the cabinet secretary, having had sight of the extract, will respond appropriately.
By all means. All I can say is that it would be entirely inappropriate for me to seek to berate the legal advice and the sign-off that was given by the Presiding Officer, the Parliament and, indeed, other people charged under the Scotland Act 1998 with responsibility for ensuring that proposed legislation remains within the powers of the Scottish Parliament and is constitutional.
As you said, one of the functions of the proposed sentencing council will be to prepare sentencing guidelines that a court must ‘have regard to' when sentencing an offender. How should the phrase ‘have regard to' be interpreted?
I will adopt the position that was taken by my learned friend the Lord Advocate when she appeared before the committee on 9 June. Requirements for the courts or other decision makers to have regard to certain matters are well precedented in statute, and the courts have been clear about what is required. The Lord Advocate explained on 9 June:
Do you agree that sufficient discretion will be left with the court, even given the sentencing guidelines?
We have always sought to make it clear that, if a sheriff or judge believes that the guidelines are inappropriate in a particular case for whatever reason—whether because of something pertaining to the individual offender or because the offence is regarded as so unusual—the sentence must be left to their discretion. It is a matter for the individual presiding whether that means that the sentence will be less or more liberal than the guidelines suggest. We fully support that position, which is how it must be. It comes back to the fact that, although there will be broad guidelines, each individual offence and offender is unique.
That takes me back to the purposes of sentencing, or at least the purposes of the sentencing council. It has been suggested—and I agree with the suggestion—that it might be better if the bill said that the overarching principle was fairness, which is a concept that five-year-olds understand. If we have sentencing that is coherent and appropriate, that broadly fits with fairness.
Fairness is clearly an appropriate factor but it is not the only one that those who impose sentences should consider. It is, presumably, about balancing in the scales of justice the interests of the community and wider public against those of the individual. However, it is also appropriate to take into account a variety of other matters in sentencing, such as the message that a sentence can send to the wider community.
You will be aware of the evidence that the committee took from sentencers on the proposed membership of the Scottish sentencing council. What are the reasons for not having a judicial majority on the council?
We must be clear that the council will be judicially led. We accept that that is important. We are open to persuasion, but our view is that it is important that the council also has representatives of broader society. That is why the council is in the bill. The ultimate decision will be made by the judiciary, who will have the power to act in their own way because of whatever reasons they consider make the treatment of a specific individual or offence different from what is suggested in the guidelines. They will be protected by that power, so it is important that we take into account others who have an interest, such as the police, the prosecution service or Victim Support Scotland. If the guidelines are not prescriptive but must be taken into account by sentencers, the fear that they will interfere with judicial discretion will be allayed. The judiciary should recognise that all our communities have a broader interest in sentencing and should be represented. The proposal gives us the best of both worlds: it will protect judicial independence, and it will ensure that the broader community has an opportunity to say how it regards offending.
You say that you are open to persuasion on the council's composition. What is the purpose of a constable being a statutory member? Should the Convention of Scottish Local Authorities be represented?
The inclusion of a constable is simply shorthand for including the police. A decision will have to be made about whether that is a chief constable or somebody else.
I am glad to hear that. In effect, you are saying that you would be open to that type of suggestion if it was manageable and was seen to retain the balance that you seek.
Absolutely. Such things are not static. As we have seen with other bodies, we must be flexible and pragmatic as society changes. We have not set the matter in tablets of stone. We have said that the council should be judicially led, although we do not think that a judicial majority is needed. Thereafter, the membership is about ensuring that the balance is not out of kilter so that we do not have five members from the judiciary and 25 Uncle Tom Cobbleighs and all. Equally, who those representatives should be is an important matter to discuss and we will be happy to take advice from anyone.
I am surprised to some extent that the cabinet secretary cannot see that there is a problem with having a prosecutor and a constable on a sentencing council that will in effect give directions—albeit in general terms—to the judiciary. Might not a way round the problem be to give the judiciary the final say through the existing appeal court procedures? In effect, that would make the sentencing council an advisory council and thus keep both the independence of the different parts of the machinery of government—the separation of powers, if you like—and the input from victims and others, which we all feel is important.
I think that we have struck the correct balance. We have made it quite clear that, if a sheriff or judge believes that there is good reason to ignore the guidelines, they may do so—
With great respect, my question is about how the sentencing council arrives at the guidelines in the first place. I appreciate that later bit.
I am coming on to that.
With respect, no one suggests that the sentencing council should include no representatives of victims organisations. My question is whether the proper balance would be achieved if the council was an advisory council with the imprimatur, as it were, coming from the judiciary. After all, the judiciary need to interpret and make individual decisions on these matters at the end of the day.
I have made it quite clear that I think that the sentencing guidelines must be more than advisory. The judiciary will have the opportunity to say that the guidelines do not fit in the particular circumstances of an individual offender or individual offence. However, to give the sentencing council a status that will allow the views of the broader community to be included, the guidelines will need to be more than just a whim or fancy. Therefore, we need to ensure that the sentencing council can set broad guidelines that provide the parameters, but ultimately the judiciary will have the opportunity to state for the record that the guidelines should not apply in particular circumstances. However, in the main, the guidelines will apply.
I want to pursue two other aspects. First, I want to ask about the interrelation between the sentencing guidelines and the statutory purposes of sentencing that are set out in section 1. I am bothered by section 2(2), which says in effect that the sentencing guidelines need not comply with the principles and purposes of sentencing as set out in section 1, which is normally regarded as the principal section. Why is that the case? Why do the principles of sentencing not override everything, including this somewhat indeterminate body—the Scottish sentencing council—that sits in the middle?
To some extent, we are talking about a very general matter and then moving on to deal with more specific things. After describing the ambit of or the backdrop to what we are seeking to do—the broader background to which Nigel Don referred—the bill focuses on more specific matters. I do not think that the two provisions are inconsistent. The bill will simply allow the sentencing council, in dealing with specific matters, to be a bit tighter than it would be in dealing with a much more general philosophical position.
With great respect, section 1 refers to ‘the punishment of offenders', ‘the reduction of crime', ‘deterrence', ‘reform', ‘protection of the public' and ‘reparation'. How can those things possibly not be taken account of in the sentencing guidelines?
We are talking about the backdrop and the general wide position that we are setting out. You then have to drill down and focus. That applies to a variety of other matters. I do not think that there is any inconsistency. If you have particular points to make, we will be more than happy to consider them. We are talking first about a general, philosophical view, then about rather more specific matters. It will be for those on the sentencing council to consider that.
That perhaps raises the question of what purpose section 1 is intended to serve. Bearing in mind that any judge or sheriff worth his salt, any solicitor practising in the court and any prosecutor will be well aware of all the requirements of sections 1(1)(a) to 1(1)(e), what difference are you intending to make to the existing situation by stating those—dare I say it—fairly motherhood-and-apple-pie things in legislation?
We are doing that because we have not really done so before. We are stating for the record what we are doing. To some extent, the bill is a consolidation bill that sets out publicly what we are seeking to do and how we will do it. It comes back to some of the points that you made earlier. There is a lack of knowledge or awareness of what we are seeking to do. The bill is part of a journey of educating our people about the courts and law and giving them an opportunity to participate. We are setting down what we are seeking to achieve and the structures that will help to achieve it. We will proceed in that general direction.
My final question is about section 1(5). You indicate that the sentencing purposes will not apply to people under 18. Section 1(5) states:
Section 1(1) deals with the duty on the court; other sections deal with specific matters. Section 1(1) sets out the purposes. Sections 1(2) and 1(3) show what requires to be applied. Section 1(5) makes it clear that sections 1(2) and 1(3) do not apply with regard to under-18s, so I think we have the appropriate checks and balances in setting out what we are trying to do, what is being done and who it does not apply to. If you read section 1(1) along with sections 1(2), 1(3) and 1(5), it is understandable.
How does section 1(1) apply to offenders under 18, which it obviously does? What is the effect of it?
It sets out general principles to which regard has to be had. You described it as motherhood and apple pie. I think that it is an appropriate statement for a civilised society and democracy to make.
Yes, but it is not something to which regard has to be had, because section 1(2) does not apply to offenders under 18. What is the purpose of it in relation to offenders under 18 if the courts are not required to have regard to it? How does it interact with anything that the courts have to do with offenders under 18? I could understand it if section 1(1) did not apply to offenders under 18—that would be a possible, if slightly peculiar, position. However, I cannot understand why section 1(1) applies when sections 1(2) and 1(3) do not apply.
I will leave George Burgess to explain the technical matter.
The approach that is being taken in section 1(5) in relation to under-18s and certain other groups is to disapply just the bits in sections 1(2) and 1(3) on the specific duties on the court. We have disapplied only what has to be disapplied. That is not to say that the courts might not recognise exactly the same principles of sentencing that are in section 1(3) as being, in the main, appropriate for under-18s. Section 1(1) really just defines the purposes of sentencing. We did not see any need specifically to disapply it for under-18s. The duty on the court to have regard to those purposes is disapplied, but the purposes themselves sit there. In a sense, the purposes beat the air for the under-18s. The court is not under any specific duty to have regard to them. Nevertheless, they are there and there is no reason to say that they are not the purposes of sentencing in relation to under-18s and the other groups mentioned in section 1(5).
I will put the question another way. What are the purposes of sentencing and how are the courts to apply them to offenders who are under 18? What is the proposed statutory difference intended to convey? How will the courts deal with under-18s who have been prosecuted as opposed to offenders who are over 18? What differences are they supposed to take account of? Where is that to be found in the law?
It is not to be found in the law. Section 1 will not require the courts to have regard to any particular set of sentencing purposes when they deal with under-18s. Essentially, the duties on the courts to have regard to the purposes of sentencing apply only in relation to over-18s. The issue is perhaps more important when it comes to the principles of sentencing in section 1(3). Section 1(3) requires the court to have regard to certain factors. That is where we might recognise more of a difference in the approach that we want the courts to take when they deal with under-18s. A number of provisions in the Criminal Procedure (Scotland) Act 1995 already require special consideration to be given to younger offenders. There is perhaps more of a need to disapply section 1(3) for under-18s than there is to disapply the purposes of sentencing, but we have achieved what we think is necessary.
I will leave it there.
That might have to be looked at again.
I have two points: one on the sentencing guidelines and one on membership of the sentencing council.
It is what we would do for a bill, and it is what we would expect to be done. We are not saying that the cost of a custodial sentence has to be weighed on the scales of justice, but an assessment of the costs and benefits of different disposals must be carried out. Disposals such as drug treatment and testing orders have cost implications for a variety of authorities. It is simply a matter of ensuring awareness of what those costs are. We are not seeking to constrain the courts. The bill does not say that they must use the cheapest option; it says that they must have some assessment of the option that they intend to use. Everyone who is involved in making use of the public purse must take cognisance of what the ultimate bill will be. You would correctly expect us to do the same for a bill. We expect people to understand the financial implications of any course of action, even if they choose to accept those financial implications.
You are clear that the courts will not have to take that cost into account.
There is nothing that says that the courts will have to take the cheapest option or that they cannot choose a disposal that costs more than X thousand pounds. The bill says that the courts must understand and be able to work out the implications of particular disposals. As I said, DTTOs have tariffs, and people need to understand the cost implications for others of using them. It is a matter of ensuring that, as a country, we have an element of joined-up working, without putting any constraints on the courts.
I return to membership of the sentencing council, on which you have already answered a number of questions. The specific issue that I want to raise is the proposal to include a constable on the sentencing council. I heard what you said in answer to Robert Brown's question but, given that every police officer who is trained in Scotland is clear that their role is not to judge but to ensure that they bring criminals before the bodies whose role it is to judge, why should we cloud that position by including a constable on the sentencing council?
Because they would not be judging. It has been made quite clear that the sentencing council's role will be to give guidelines, not judge. The responsibility for judging people will lie with those who have been elevated to the bench in either a shrieval or a judicial capacity. They will provide their input, and the input of the police, in the form of a constable, will be important. They will be able to reflect the views of the police, based on what they pick up on in communities. However, they will not be there to judge; they will be there to give advice.
Any person—including a police officer—on the sentencing council will make a judgment on what is an appropriate sentence for a particular crime. That is where I see possible conflict between the role of police officers and the role of a member of the sentencing council.
I do not like to be tautological, but I would have thought that the definition of ‘judgment' would be the choice between A or B. However, the members of the council will not be asked to choose A or B; they will be asked to set guidelines. They will say, for example, ‘We view the possession of a knife as a serious offence, and we expect courts to treat it that way.' They might say something similar about sectarian singing and so on. They will state views; they will not specifically judge people—no individual will come before them, which means that they will not make judgments.
We could argue that point. I do not agree with you.
I would share Cathie Craigie's concerns if the sentencing council created a grid-like framework that meant that a certain crime always resulted in a certain sentence, which is what happens in some states in the United States of America. However, that is not my understanding of what the Government has in mind.
Absolutely. If we adopted the grid-like framework that you describe, we could replace judges with automatons and simply press a button once the accused had been found guilty in order to get the sentence, but that is not what we have in mind. We have ensured that judges will continue to have the right to make decisions based on individual offences and individual offenders. The sentencing council will issue broad guidelines.
I was not entirely satisfied with the answer that you gave when Robert Brown asked about the relationship between the sentencing council and the appeal court. How would you respond to the statement that Scotland has had a sentencing council for several centuries, and it is known as the Scottish court of criminal appeal?
The Scottish court of criminal appeal will remain sacrosanct and untouched by us. However, the idea that it has managed to take on board, in every instance, the wishes of the broader community, that it reflects the views of those who represent victims, or that many of its decisions percolate down quickly, is not the case in practice. Significant progress is being made, however, and I welcome the steps that have been taken by the appeal court to ensure that its views and decisions are disseminated down, electronically or otherwise. The specific role of the sentencing council will be to build upon that, and to ensure that our judiciary is well advised on those views. The two are not contradictory—they run in parallel. The views of the court of criminal appeal will be extremely important in ensuring that we get that down. Its decisions are binding, but it is misguided to think that it allays the public's fears or that we should not have an opportunity to take a broader view.
Surely the court of criminal appeal's decisions are disseminated quite quickly—you see them in the Scots Law Times every week. Scottish criminal cases are published regularly. I do not see that a problem exists.
It is accepted by the judiciary that the system is not working as well as it would like, and that decisions are not being disseminated down. Although the IT system seems to be up and running, there is considerable progress to be made. We envisage that the sentencing council will work with the appeal court to improve that; in fact, it is a matter of working not simply with the appeal court but with the Judicial Studies Committee. However, on the idea that everything is hunky dory—no, it ain't.
Is it not the case that despite the best intentions of all concerned—and I have no doubt that those intentions are good—you will never solve the problem, in that any system in which the human element is present will always provide the occasional difficulty?
That is why we have an appeal court and are not changing the appellate system. That is why, if people feel that sentences are too lenient, the Crown has the right to appeal. That is why a sentence can be appealed if it is felt to be too harsh. If it is felt that there has been a miscarriage of justice, there can be an appeal. Indeed, one section of the bill will give the Crown the right of appeal—there has been something manifestly wrong in our system because the defence has had the right of appeal but the Crown has not. I look forward to the support of the committee on that.
Since the start of the meeting, it has been intimated to me that Angela Constance will not be present. Aileen Campbell will be attending as her substitute. While there is no requirement in standing orders to do so, I would prefer substitutions to be for the entire meeting and to be intimated at the start. That being so, I ask Aileen Campbell to confirm that she is attending as a substitute for Angela Constance.
I confirm that.
Thank you. We turn to the issue of short custodial sentences.
The committee has received and heard evidence arguing that short custodial sentences can be effective and that the current use of such sentences is generally appropriate. What are your views on that?
All the evidence seems to be that they are not effective. The statistics show that short sentences simply result in churn. However, we reserve the right for sheriffs—or the judiciary, although it would normally be a sheriff—to impose a short sentence if they feel that that is the only appropriate sentence.
You relied on the fact that the judiciary supports some of the proposed measures in part 1. However, on section 17, the submission from the judges of the High Court of Justiciary says:
Absolutely—that is why we have the 30-days option. We can take a horse to water, but we cannae make it drink. If somebody is given the opportunity to do a community payback order but they cock a snook at society—never mind those who seek to reform them—they must be punished. We will fully support any sheriff who says, ‘We're sick and tired of your behaviour. If you think you can just sit at home and not go out to do some work to make up for the damage, you'll go to prison.' A fail-safe sanction must be available—the provision is in the bill because we recognise that.
That is all very well. I agree that there is an issue for the Scottish Prison Service to sort out when people are in prison. The public not only expect offenders to pay their debt to society, but think that we have a duty to address the issues that led to their breaking the law.
We are not interfering with a sheriff's ultimate right, after considering the individual, the offence and all the options, to impose a short sentence if they think that there is no alternative. If you want me to tell the Equal Opportunities Committee that it is wasting its time, because there is no problem and everyone in Cornton Vale was sent there correctly, I can do so, but I do not think that that is what the committee has learned. I have great respect for our sheriffs and judiciary, but there is a problem that must be addressed.
If only I had the power to instruct the cabinet secretary on what to say or do when he appears before a parliamentary committee.
We are looking to end the free-bed-and-board culture. Far too many people go to prison and sit there twiddling their thumbs. Their stay in prison is paid for by the taxpayer, which compounds the agonies arising from the crimes that they committed in their communities. We want, first, such people to be punished and to pay something back, and secondly, to address people's underlying problems, whether we are talking about a young girl's heroin addiction or a young man's alcohol problem. That seems to be an appropriate approach, which would make our communities safer and address our problems. However, the ultimate decision will be made by the sheriff. The package must be taken in the round.
On the other hand, it has been suggested to the committee that courts might give longer sentences in order to circumvent the provisions in the bill. Could that be a problem?
No, I do not think so. Sheriff Fletcher touched on that in his evidence to you. I do not think that any sheriff would do that. They will give what they regard as the appropriate sentence. As I said, if they believe that a short sentence is appropriate, the Government will respect that. Where people seek to cock a snook, we will ensure that we give sheriffs full support.
It has been pointed out to us that those who plead guilty at an early stage could have their sentences reduced by a third, which means that sentences of nine months could fall within the provision. Is that correct?
That is the rule under the current legislation. It applies whether the person appears on indictment in the High Court due to a serious drug offence or elsewhere. That is the rule that the Government inherited.
It came from the Du Plooy judgment, which was a High Court decision, and it was then incorporated into legislation. Is that correct?
Yes.
Mrs Craigie's point is that the top line of an individual's sentence could be 12 months, but on the basis of an early plea being tendered, it would be reduced by four months to eight months. Thereafter, because of early release, the individual could be out after a maximum of four months, which is below the six month cut-off period. That would negate what you seek to do.
George Burgess will give you the specific answer and I will give you a comment thereafter.
I do not think that the scenario that you presented would operate. The provision in section 17 operates on the sentence, which is the overall period. The fact that the person who is given the sentence would spend a shorter period than that in prison is not relevant to the calculation, which is done on the basis of the sentence. The 12-month sentence that might be reduced to eight months would not be caught by the provision.
I accept that that will be the case under the legislation if it is approved, but the de facto position would be that the sheriff might well think that a sentence of 12 months was appropriate in a certain case, but because of the plea, a third would be taken off that, which would reduce it to eight months. Thereafter, because of early release, the individual would be out after four months. That negates Mr MacAskill's argument that individuals who find themselves in custody for short periods do not provide the Scottish Prison Service with the opportunity to rehabilitate and to combat drug or alcohol difficulties or whatever.
That is why, in later sections of the bill on which you might care to question me, or not, we take steps to end the arbitrary unconditional automatic early release that was commented upon by the McLeish commission and which—as we never hesitate to remind each other, convener—was introduced by a Conservative Government many years ago.
You should not bandy words with me, Mr MacAskill. I feel forced to remind you that your members in the Westminster Parliament did not exactly rush to assist when the Conservative Government sought to remedy what had gone wrong. We can discuss that later.
I return to six-month sentences. You used the term ‘less serious offenders'. What would be the profile of such offenders? What sort of crime would they have committed?
Ultimately, I will leave that to the sentencing council. You have to remember the variable nature of common-law offences in Scotland. A breach of the peace can result in someone being charged on indictment—rightly so—but it can also be a relatively minor matter. We have to have flexibility. You bandy around words in asking what constitutes an offence, Mr Martin. However, you must remember that a breach of the peace covers offences from the extremely serious to those that can be dealt with in a justice of the peace court or—at some future stage—by way of a fixed penalty or fiscal fine. If the offence is serious, it can result in a considerable jail sentence.
You want to move away from six-month sentences. That is the issue. You said that you were considering that for less serious offenders, and I am asking for an example of what you mean. Should a housebreaker receive a sentence of less than six months?
I am giving you an example—
Perhaps you will let me finish the question—
Let him finish the question.
Housebreakers can receive a sentence of six months or less. Are you saying that theirs is a less serious offence? Should housebreakers receive community sentences?
I am leaving the matter to the sentencing council to advise me on. I have seen a breach of the peace result in an extremely lengthy sentence. You must remember that the common law of Scotland allows for interpretation. Sentencers have the necessary flexibility to deal with offences that range from a serious assault to a fairly minor breach of the peace. The Solicitor General for Scotland has commented on that and other matters.
All that I am asking you to do today, cabinet secretary, is to assist the committee by telling us what you mean by the term ‘less serious offenders'. You are asking us to accept your policy on short custodial sentences. However, the background notes on the bill make it clear that, when you use the word ‘flexibility', you are talking about a presumption against six-month sentences. Sheriffs will have to explain why they have given such sentences. I am asking you to give an example of what you mean by a less serious offence. Housebreakers can receive a sentence of less than six months, as can those who are involved in child pornography. Is it acceptable that people who commit such offences receive a community sentence?
Public safety is paramount—it always has been. That is why we have rolled back the provision of private prisons and so forth. There will always be people who have to go to prison because they are a danger to our communities. If they have committed a serious offence, and no other sanction satisfies public safety or mores, they have to go to prison. Beyond that, it is clear that there are shades of grey. That is why we recognise the right of individual sheriffs to take positions that differ from that of the sentencing council or appeal court. The convener mentioned that. Sheriffs tell us that they have differentiated in the case of offender X because of the different circumstances that apply in the case. That route is open to sheriffs.
I will follow up the point that Mr Martin made. It is difficult to define on paper what is a serious or less serious offence. As you correctly state, cabinet secretary, breach of the peace, which is normally a minor offence, can be serious from time to time. Shoplifting of a value of £30 to £40 would hardly be a hanging matter, but how would we cope with an offender who has done that 30 or 40 times despite having gone through the full gamut of disposals from admonition to probation and community service?
Shoplifting might be fuelled by an addiction, which would trigger a view to be taken. Equally, people might shoplift as part of an organised gang, which is an extremely serious offence. I was a defence agent for 20 years, and I remember the problems that we had with people who had been driven out of London, Leeds and then Newcastle and who then came up here to shoplift at will as part of serious and organised crime. The specific offence of shoplifting—and the goods that they were caught with—might not necessarily have been high value, but I would fully support any sheriff who took extremely serious actions against such people.
I agree that the matter cannot be viewed in isolation and strongly agree that people who are a danger or threat to communities should receive custodial sentences, but I am still concerned that section 17 will allow folk to slip through the net. I also have concerns about how we balance section 1(1)(d)—'the protection of the public' under the purposes and principles of sentencing—with what may happen if courts implement section 17. I have concerns that people who are a threat, a danger or even a nuisance to the communities will avoid custodial sentences and continue to be a nuisance to the community.
First, we have the fail-safe of the appeal court. If a sentence was felt to be entirely unreasonable, it could be appealed—presuming that the committee supports the bill's provisions on Crown appeals. If a disposal was breached, there would be an opportunity for the sentencing council and sheriffs to review how such offenders or offences are dealt with. Those systems are built into the proposals.
Section 23 deals with
It is more the other way round. Section 23 will bring the racial and religious aggravation provisions into line with the provisions in the Offences (Aggravation by Prejudice) (Scotland) Bill.
So there will be no difference between the two pieces of legislation.
That is right. The section ensures consistency.
On the impact of short sentences on children, which I have previously pursued with you, cabinet secretary, Families Outside has said that children of a parent in prison are more likely to end up in prison in later life and to suffer from regressive behaviour such as bed wetting and failing at school. I acknowledge other members' comments that people who have done something bad in society must be punished with the appropriate sentence, but do you believe that the use of non-custodial sentences will also have a wider societal benefit?
That is already covered in the bill. Under section 1(4)(c), ‘the offender's family circumstances' are taken into account; moreover, proposed new section 227B(2) of the Criminal Procedure (Scotland) Act 1995 as inserted by section 14 says:
Perhaps to a more receptive audience. [Laughter.]
Judges and sheriffs have expressed concern that the provision in section 24, ‘Voluntary intoxication by alcohol: effect in sentencing', is unnecessary because they already decide whether to take such matters into account. Do you have any comments on their evidence in that respect?
Intoxication by alcohol is not supposed to be used as a defence. However, if you go into any court in the land—as I did for 20 years until 10 years ago—you will hear defence lawyers saying, ‘Yes, he did it, but he's very sorry. He's kind to dogs; he walks old ladies across roads; he wasn't there; he didn't do it; it wisnae him; he was drunk or under the effect of drugs.' There comes a time when we have to say clearly, ‘It wisnae the drink that did it; it was you. If that's how you behave under the influence of alcohol, you have to accept the responsibility.'
I get the impression that we will not reach unanimous agreement round the table on short custodial sentences, so we will now go on to the issue of community payback. The questions will be led by Paul Martin.
The policy memorandum on the bill states that community payback orders will be ‘robust, immediate and visible'. First, what is meant by ‘robust'?
We are committed to delivering robust community payback orders, which means that they must start on time and be completed quickly. We are also committed to ensuring that enforcement is robust, because the community payback must be done.
Whether a community payback order starts on time will obviously be an issue for the agencies that deliver the framework. Will the sanctions that are to be put in place also apply to the agencies if they do not deliver on time?
To go back to the very beginning, many of the proposals came from the McLeish commission. I remember Lesley Riddoch saying that, when she visited court, she was gobsmacked to see how someone who was given a custodial sentence, whether of three months or of three years, was taken down below to serve their sentence—in more modern courts, they might not necessarily be taken below, but they are taken away in handcuffs by police or Reliance officers—whereas someone who was given a community sentence got a wee note of paper telling them to turn up at the social work department at an unspecified date, perhaps after calling a phone number. As I said earlier, I served as a defence agent for 20 years, but I never quibbled with that—that was just what happened. Anyone who got a prison sentence went down there and then, but for anyone who got a community sentence the details were worked out in due course. Why?
Cabinet secretary, I could not agree more on the importance of delivering community sentences on time, but my point is that, if the offender is to be required to serve the community sentence within a seven-day period, what will happen if the relevant agency does not deliver within those seven days? Will sanctions be taken against agencies? Sometimes local authorities might let down the offender by not ensuring that effective justice is delivered quickly. The offender might not be the one who lets the system down.
You are right. The audit showed us that the system is not working appropriately the length and breadth of the country. Work is in progress on that with COSLA, which flagged up that it wants to deal with those matters. COSLA is united with us on the issue, but it has said that local authorities will not be able to achieve that without resourcing. That is why we are committed to more resourcing.
How robust is that? An offender might be advised that swift justice will be served on them but, if the system is let down by the local authority, where is the robust mechanism to deal with that? You have acknowledged that the current congestion in the system is because local authorities are not delivering the service that they should, so surely there should be a sanction to deal with them. I am not advocating one; I am just asking whether you have anything in place.
That is why we have SWIA reports. When areas of the country are flagged up as having problems, the issue is raised in the parliamentary chamber—for example, the First Minister must answer questions on it at First Minister's question time. Nobody enters public service, or public life, to do Scotland down and make it less safe and secure. When local authorities are found not to be delivering, action is taken and, for example, new lead officials are brought in to address the problem. That is the current practice, but if you are suggesting that we need some statutory intervention to address problems immediately, I am willing to consider that. We already have audits, SWIA and the view that local authorities must do their best. If they do not, they are open to criticism locally and, ultimately, here in this committee or in the parliamentary chamber.
On visible community service, how will a community be able to identify that a community payback scheme is operating in their community?
We are already seeing that. I go to many places that have been painted or whatever through community service. Indeed, I was delighted to be advised by the minister of Portobello old parish church that the community service team will help with a fallen ceiling there. They cannot do the complicated cornice work that will have to be done, but they will do some of the hard donkey-work to ensure that the parish church is put back as it was. Do we need to have people in orange jumpsuits? No, but we need to ensure that, where appropriate, there are plaques. I have been in many a place where it was clear from plaques, whether on park benches or whatever, that community service work had been done there. I will therefore leave to the common sense of communities the decision about what work needs to be done locally.
But do you accept that the visibility issue is a challenge? Constituents have advised me of work in the local community that they understood was carried out by local contractors rather than community service. If you want community payback orders to be a visible process, do you acknowledge that that presents challenges in getting the message across to communities? I am not advocating any particular method of doing that; I am just asking whether you recognise that there is a challenge. Again, constituents have advised me that the local housing association's contractors did certain work that was, in fact, done by community service.
I want community service work to be done for two reasons. First, I want the kids—in many instances, it is young men—to pay back by the sweat of their brows for the harm that they have done. I make no apology for saying that. Secondly, I want people to be able to see their community getting better. In some instances, there will be a partnership between community service and others because some work, such as that for the ceiling in Portobello old parish church, requires skilled labour. That work cannot be dealt with by people who are on community service, for a variety of reasons.
I am sorry to labour the point, but the policy memorandum says that you want to ensure that
Visibility comes in a variety of ways. Communities should know what work can be done. I visited a scheme in Fife, for example, in which people were asked to nominate work to be done. People could vote on the internet, as they can do for television programmes, or they could text in to say what they wanted to be done. Things were put in ascending order. In fact, there is more work in Scotland at the moment than community service kids can do.
I think that Mr Martin feels that there is a false prospectus with regard to the definition of the word ‘visible'. I have some sympathy with what he has said but, as it is unlikely that there will be consensus on the matter, I suggest that we move on.
On resources, the cabinet secretary told us that he had a discussion with Councillor McGuigan yesterday. When he gave oral evidence to the committee, Councillor McGuigan focused on the provision of adequate resources to COSLA to carry out the necessary work. Have you advised him that you will provide all the resources that he requires to deal with COSLA's commitments?
That is clearly an issue for COSLA. Harry McGuigan was correct to raise the issue, which Robert Brown and Henry McLeish have also raised. We recognise that there must be resources, which is why I said at the outset that we propose to make £5.5 million available over the next two years, as well as the additional resources to which we have already committed. I hope that we will be able to get more resources, but much depends on whether we will be given consequentials and assistance with the swine flu pandemic, for example. The Government must meet needs, but we cannot provide as much as we would like because we have not received Barnett consequentials for prisons, nor have we yet been given assistance in tackling a clear issue of national urgency. However, I hope to provide more resources if we can.
I would like to pursue the issue of resources, if I may. I am grateful that there will be additional funding, but I want to be clear that the funding relates specifically to the existing community orders. I think you said in your introductory remarks that it is designed to increase the speed and, perhaps, the quality of the current process. Will you confirm that?
Wilma Dickson will comment on that.
The priority, particularly for this year and next, is to get up to speed. For a number of local authorities, there is quite a transition period for retooling and dealing with backlogs. At the end of that period, it should be possible to divert resources away from catching up and into investment in additional CPOs.
I follow that, but we have had figures from Glasgow and other parts of the country about the extent of the backlog—I suppose that it has not been helped by the recent strike in Glasgow, although that is another issue. It seems to me that the bulk of the money will be required to bring the existing orders up to scratch and to hold them there. If that is not done, there will be a falling away again. At the end of the period, how much of the resource—I appreciate that there is another £2 million—that will not be needed just to keep the existing orders up to scratch will you be able to reallocate?
It might be helpful if I say that one of the other things that you should take into account is that we need to resource the additional costs of progress courts and to put some extra capacity into electronic monitoring. Most of the money will go out to local authorities. Obviously, all the £1.5 million that will go out this year will go to local authorities on the normal distribution formula as quickly as possible, because we want to start on the catch-up as quickly as possible.
We cannot be too prescriptive. Some areas have specific problems. Robert Brown mentioned Glasgow, but other areas are doing remarkably well. The money has to go mainly into front-line services, and spending decisions are—given the particular needs of the criminal justice social work department—best made by local authorities, and not by me in St Andrew's house. We have given you the broad direction of travel. We are more than happy to work with local authorities on this, but ultimately it is their call.
There are two or three other important issues. I think that most of us would agree about the quality of some community service orders at the moment. You mentioned the 42 per cent reoffending rates, which is one test. The rate is better than that which is achieved by short-term sentences but, arguably, not that much better, considering that you are dealing with a lesser category of offender. Are there mechanisms in place to improve the quality of community service orders by making them more focused on reducing reoffending rates and achieving more success?
Yes—although that has, to an extent, to be dealt with locally. It is about ensuring that we get best practice across the board. Equally, we have to recognise that there are particular problems in some areas because of their volume or geography. Community sentencing in the Highlands and Islands and in Dumfries and Galloway is particularly challenging because of the geography of those areas. It is about learning from good practice and figuring out what works in a particular area.
The committee is concerned about the number of breaches of community service orders—some of us have asked about that from time to time. The Government and the committee would probably agree that that has to be tackled. It is a matter not just of starting effectively but of keeping at them effectively, and dealing with breaches properly, while recognising the need for flexibility. Under the arrangements that you are putting in place, do you anticipate an increase in the number of breaches that will have to be dealt with by reference back to the courts?
We hope that progress courts will alleviate that. We have learned from DTTOs and from speaking to sheriffs that sometimes it is not simply about keeping people on a tight leash and berating them; sometimes it is about encouraging them, and saying how well they have done. We are giving sheriffs the flexibility to encourage people who are doing well to overcome their addictions, to become less of a nuisance in their communities and to contribute as net taxpayers who function manageably in our communities, rather than their being a drain on taxpayers.
The number of new orders will be crucial. I am bound to say that the presumption against short-term sentences implies that the intention is that in the bulk of such cases sentences will no longer be imposed and will be replaced by community orders. The financial memorandum talks about alternative scenarios of 10 and 20 per cent increases in community orders. If the new policy is to have any impact, such increases would be rather low.
You are correct to raise the issue. We do not believe that a millennium moment will occur. In 2007-08, there were 8,191 direct sentence prison receptions for sentences of under six months, which equated to only 6,076 individuals. That shows that some people go to prison more than once for a short sentence and often more than once in the same year, through the revolving door.
You suggest that we will end up with significantly higher figures and therefore increased resources in future years. In that context, would it be an advantage to phase in introduction and to adopt the Liberal Democrats' suggestion of three months rather than six months as the cut-off point? I accept that such matters are, to a degree, arbitrary. Even with the extra resource that you talked about and some reallocation later, will the facilities be available to make the policy a success? You will perhaps accept that if the policy does not work effectively, is not seen to protect communities and does not increase success at preventing reoffending, communities will be considerably disillusioned.
Those concerns are valid and legitimate. I have talked about the additional funding—a bit more might be obtainable, but that depends on some factors—together with improvements in practice. We take into account the fact that sentencers will not change their habits overnight; some people always take time to change. Also, some people will still receive short sentences. Such matters can be dealt with—we are on a journey in that direction of travel.
What assumption have you made about the long-term increase in community sentences, once the legislation is fully in place, the lead-in period is over and confidence-building measures have been taken? Are you talking about a 50 per cent, 25 per cent or 90 per cent increase?
It might be helpful if I return to the figures and explain some of them. There is a difficulty in that there are different ways in which we count sentences. The higher figure of 12,000-plus short sentences is a perfectly accurate figure for the number of sentences that the courts impose. However, given that some people have served time on remand or are given three or four concurrent sentences, the figure for sentence receptions is much lower and the figure for the number of people who go into prison is lower still.
That is helpful.
I see exactly where you are coming from. Many accused avail themselves of the roll-up facility, particularly when they are in custody.
My question is on community payback orders under section 14. Proposed new section 227B(5) of the 1995 act states:
A person who says that they will not comply with an order will not get one. The situation will be the same as with bail: a standard bail condition is that the person must not commit another offence. If the offender says, ‘I'm gaunae', they will be told, ‘You're no getting bail.'
So, if the offender is not willing to comply with the order, the court has recourse to a custodial sentence.
The point that I made earlier was that you can take a horse to water, but you cannot make it drink. If the offender was told, ‘This is what you're gaunae do', but then said, ‘I'm no doing it', the sheriff would be right to say that a custodial sentence is the alternative. If a bail condition is that the person cannot go to the pub or return to the matrimonial home, but the person says that they will do that, they will be remanded.
I am not talking about bail conditions; I am talking about community payback orders.
You are talking about the court laying down an order and the person refusing to accept it. If they refuse to accept it, the order will not be given. People either accept the terms and conditions or face the forfeit. In such circumstances, I have no doubt that the offender would be given a custodial sentence.
Right. This is an appropriate time to have a suspension. I am conscious that you have an appointment elsewhere, cabinet secretary. We will have a five-minute break.
Meeting suspended.
On resuming—
I thank everyone for being back in their seats so promptly. Robert Brown will lead the questioning on serious organised crime.
Why are the new offences of involvement in, and direction of, serious organised crime needed, given that people can already be prosecuted for conspiracy to commit a crime or inciting others to commit a crime? Is the common law under that heading not entirely adequate? Does it overlap with the new proposals?
It can be difficult to prosecute at the top end of criminal network offences. Indeed, that has been highlighted in the media south of the border. Although conspiracy can be charged for serious organised crime, the prosecution authorities have given evidence to the committee on the difficulties of doing so and proving the offence. Serious organised crime is a significant threat and we must address it; it is unacceptable. Therefore, it is appropriate to build a statutory basis for specific offences.
Section 25(1) says:
Clearly, it would be possible to libel that crime as conspiracy. Indeed, that option may remain for the Crown in some circumstances. However, with these provisions, we are recognising that serious organised criminal gangs operate in Scotland. Those gangs are involved not only in the drugs trade but in people trafficking and smuggling, for example. They also seek to undermine legitimate areas of the economy and drive hard-working Scots off the road or undermine their businesses. We must recognise that problem. As with the Emergency Workers (Scotland) Act 2005 and the bill's provisions on intoxication, we are sending a clear message about how seriously the Government and society view serious and organised crime.
There is no disagreement around the table on the importance of serious organised crime, for the reasons that Mr MacAskill mentions. However, my question is this: what is the difference between the definition of involvement in serious organised crime under section 25(1) or that of directing serious organised crime under section 27(1), and the definition of conspiracy that a judge would apply under the common law?
I point back to the evidence that the Lord Advocate and the Solicitor General for Scotland gave to the committee a couple of weeks ago. They explained the extent to which the new offences in the bill could get into the serious crime organisation a bit earlier in the chain—before the conspiracy had formed—and why, in their view, they would be better than relying simply on common-law conspiracy. I cannot really add to what the law officers said on that occasion.
I think that the provisions have their genesis in the serious organised crime task force, which included not only the law officers and the police but—so that we could deal with the tentacles of organised crime—Her Majesty's Revenue and Customs, the Serious Organised Crime Agency and the Scottish Prison Service. Some ideas were also taken from Canada, where the Solicitor General had seen the benefits that had accrued from such measures. It seems to us that, if tackling serious organised crime in the way that is proposed will have benefits—as in Canada—over using the common law of conspiracy, which is not necessarily delivering as we would wish, it is appropriate that we take action. As is perhaps always the case, the common law will still exist after we bring in the statutory offence, but the provisions are about tackling the specific problem that we believe exists in Scotland. As well as ensuring that we have the legislative basis to support those in SOCA, HMRC, the Scottish Crime and Drug Enforcement Agency and the police who are involved in tackling the issue, the provisions will ensure that the balance is not tilted too much against the opportunity to protect our communities.
Let me move on slightly. It was suggested in previous evidence, as the cabinet secretary perhaps heard, that two people who together organised to steal a pie could be covered by the definition of ‘serious offence' in section 25(2)(a). The criticism is that the bill mixes together very serious matters with potentially trivial matters at the bottom end of the scale. I accept that the prosecution can exercise a degree of discretion, but is there not potential for narrowing the scope of those rather significant charges in the bill?
I know that that is not a flippant point, but it is also quite correct to point out that discretion needs to be exercised by the police, the SCDEA and the prosecution. We also need to recognise that folk will use the common sense that they are born with, so the Crown will not libel such matters on a whim or fancy. Indeed, if any such matter were so libelled, I would expect our judiciary to treat the charge with the contempt that it deserved by dismissing it fairly summarily. As I said, the provisions are intended to ensure that we have the appropriate statutory powers to protect our communities. We do not anticipate that the new offence will be used in huge volumes, but we believe that the ability to use it is necessary to protect our communities from the threat that they face.
In that context, have officials given any attention to the possibility of narrowing down the scope of the provision to meet the objection—of the public, to some degree—that such charges sound, and are, very serious whereas they could be used for things that are not very serious at all? We surely do not want to water down or dilute the concentration on serious organised crime.
We are more than happy to reflect on that. However, as was pointed out earlier, the offence of breach of the peace can constitute anything from a minor matter, such as a ruckus out in the hallway there, to behaviour that is equivalent to stalking—I recall a defence agent once charging someone on indictment with a breach of the peace for that, and rightly so, given the person's threatening and intimidatory manner. However, the requirement for definition is clearly greater for a statutory offence than for an offence under the common law, which allows more flexibility, so I am more than happy to undertake to reflect on the points that have been made.
I have a brief follow-up question on the issue of duplication. When the Solicitor General gave evidence two weeks ago, he gave the example of malicious mischief, which is an offence under the common law but is usually prosecuted under statutes dealing with vandalism. Clearly, such duplication already happens. However, I want to move the discussion on slightly by asking whether the cabinet secretary agrees with the point that, although persons can already be charged with conspiracy, there is a great deal of usefulness in having a statute that specifies that they were involved in serious organised crime. In effect, having such an offence on the books allows it to be put on record what the conspiracy was about, given the difference between a mild conspiracy and involvement in serious organised crime. A specific statute of that sort allows it to be put on record that the individual has been involved in serious and organised crime, as opposed to just conspiracy, which, although it could be serious, might not be seen in the same light.
Absolutely. It is similar to the reason why we passed the Emergency Workers (Scotland) Act 2005 and a variety of other measures. Indeed, it is why the Parliament passed the hate crime bill more recently. It should be recorded—people should know that what they have carried out is viewed as significantly more serious than the milder actions that you referred to. To take the example of someone committing an assault by throwing a stone, if they are doing so at someone who, as part of their job as a paramedic, is trying to treat a person who has collapsed from a heart attack, the circumstances should be recorded. First, that is to know the number and extent of such incidents, as is the case for race hate. Also, it should be on the record what the offender was up to.
There is a general aim that is shared round the table as to what we are trying to do here.
Absolutely.
I note what you said in reply to Mr Brown—that you will consider the matter again.
The focus of concern about the serious organised crime provisions lies with section 28, which is on knowledge or suspicion. I accept that there are exemptions, but you might agree that that element goes considerably beyond normal previous concepts of law, which have attempted to define what a crime and an attempt to commit a crime consist of. Section 28 moves very much into offences of omission, as it makes people guilty not for things that they have definitely and directly done themselves, but for things that they know about and have not seen fit to report to the proper authorities. Do you accept that the section has wide powers? Do you accept the concerns that have been expressed about it in some quarters? Is there any way in which those concerns might be alleviated by focusing more directly on the people you are trying to get at? Who is the target of section 28 and how can you focus on those people?
You are right that it is a wide target. We know that serious criminals require facilitators—professional advisers, basically—whether for property deals, for legal matters or for accountancy. The provisions are a backstop, to an extent. We hope that the situations that they cover do not arise, and we fully support the work of professional and trade organisations in relation to money-laundering legislation and the wider ethos, rules and regulations. We hope that matters are resolved from within, rather than without. However, I would not hold my breath about that, given the nature of the money and benefits involved. Although the provisions in the bill are a backstop, which we want to work, we believe that the new offence adds impetus to get our approach right.
Are the conspiracy and involvement elements not dealt with by section 25, or by the money-laundering regulations, perhaps with some additions to them? Could you be a bit clearer about the mischief that is not being met at the moment, which would not be covered by the money-laundering arrangements, by the common law of conspiracy or by section 25?
Without going into anecdotal tales, which is never the best way, I suggest that those matters have to some extent been covered, in principle, by the Solicitor General and that it will be the Crown and the police who drive them forward. They have flagged up a cause for concern. You are correct that there will be areas where there is overlap between what is clearly conspiracy and a variety of other matters. We are aware that serious organised crimes are being carried out in a variety of ways and we believe that we must take steps to combat such crime. This proposal has come from the serious organised crime task force to enable us to deal with activities that we know are going on, whereby people are buying up legitimate businesses and places such as new-build flats in order to hide drugs or carry out a variety of other activities.
I repeat that nobody around the table has anything other than a desire to tackle serious organised crime, but we are still entitled to ask you whether your proposal does what it says on the tin.
We have not been involved in that, but you are correct that the issue is not only the legislative framework but how we can apply our evidence and how we act in respect of the powers for police, prosecutors and whatever else. We do not quite have an open book, but we established the serious organised crime task force to deal with these issues in a variety of ways. We are dealing with one matter that it has flagged up and we are more than happy to co-operate, adopt ideas and work with various authorities on these issues. As was made clear by the task force's recent announcement, we know that many of the criminal gangs that operate in Scotland are not based in Scotland. Many come from south of the border and some even come from beyond the shores of the UK. We work with UK authorities on the issue—for example, HMRC and SOCA sit around the table with us—and we also co-operate with Europol. There is genuine openness and we are willing to work in whatever way, with whatever authorities, in whatever jurisdictions, to tackle a global problem.
This is an important topic. As there are no more questions on it, I will say that it is a matter to which everyone will give considerable thought before the legislation proceeds.
The committee has heard a variety of evidence about whether the retention of DNA samples should be extended to offenders who receive fixed-penalty notices. Some people have argued that many of those offenders go on to commit serious crimes and that the retention of their DNA would be an effective tool in detecting such crimes. Do you agree that the retention of such samples should be based not on the penalty that is received but on the offence that is committed?
Before Mr MacAskill answers that question, I point out that the officials have changed. Denise McKay, from the legal directorate, and Rachael Weir, from the criminal procedure division, both in the Scottish Government, have seamlessly assumed their seats. Mr MacAskill may now proceed.
Stewart Maxwell makes a valid point. The Government has made it clear that we are open to reviewing matters—for example, Professor Fraser's review covered issues relating to children. We are getting people on board to work out what the correct balance should be. The Government is firmly opposed to any blanket retention of forensic data for an indefinite period; such data should not be retained indefinitely unless the person has been convicted in court.
I am delighted to hear that. Is it likely that the Government will either accept an amendment at stage 2 or lodge its own amendment on that point?
We are happy to consider our position on that, subject to provisos in the Parliament about matters being legal, appropriate and compliant with the ECHR.
I have written to you on that matter, as I am sure you are aware, and I look forward to receiving your response. You briefly mentioned DNA samples from children; the bill clearly provides for the retention of samples from children who have been referred to children's hearings for relevant serious and violent offences. Can you elaborate on the rationale behind those provisions and explain how the list of applicable offences will be developed?
We know that, tragically, there are a small number of youngsters who commit very serious sexual or violent offences, and who sadly continue in many instances to pose a threat beyond childhood. We are considering how to achieve the appropriate balance. It is important to remember that the provisions relate only to serious sexual or violent offences; we will consult with the forensic data working group on the list of offences.
When is that likely to be forthcoming?
It will probably not be before the bill is passed, as it will take some time to work out. Some element of flexibility may ultimately be required, given the nature of the offences. I cannot give you a timescale, but I can certainly undertake to ask the members of the working group whether they have set a timetable. The bill will provide us with the appropriate powers, and we can then drill down to a much more specific level with the working group.
Just to be clear, do you expect that the working group will report before consideration of the bill is concluded?
We do not have a timescale. We could inquire about what stage the working group has reached, but it is still being set up and we have not set a timescale for its work. We are not expecting the group to sit and do nothing, but we have allowed it to decide on a timescale—we have only established the framework and brought the members together. I am happy to ask the group's members whether they can give us any information that we can pass on to you about the timescale for the investigation.
I presume that you expect that the outcome of the working group's deliberations will not impact in any way on the provisions in the bill.
No—there is sufficient flexibility in the framework of the bill to allow us to use the outcomes from the working group to deal with more specific matters.
It would be useful if we could find out the timing of the working group's report. It seems to me that we are getting things slightly out of kilter. I appreciate that there may be problems, but we would want to have the information from the working group prior to legislating. That may not be possible, but can we find out what is happening?
We undertake to give you that information.
What will the interim position be if there is a gap between the passing of the bill and the working out of the list? What will happen in the meantime?
The legislation will not be brought into force. I presume that it will require the trigger of subordinate legislation thereafter to bring it in. To some extent, what we are legislating for in the bill is the powers. What will have to come through thereafter will be done through a Scottish statutory instrument. If Parliament passes the bill, it will give only a consequent power, and thereafter a statutory instrument will be required to come before the committee.
I understand the process, but could I clarify whether the SSI will list the specific offences to be included? Given the nature of the subject matter, I assume that it will be an affirmative instrument.
Perhaps I can assist. We should look at section 59 of the bill and the new section 18B that it inserts into the 1995 act. Section 18B(6) provides that a relevant offence is such an offence as ministers may prescribe. What ministers can prescribe has to be selected out of what is already defined in the 1995 act as relevant sexual and relevant violent offences, so there is already a limitation on the scope of the possible set of offences that can be specified—it is not a free-for-all for ministers to choose whatever they like. It will be an order made by statutory instrument. We will need to check on the procedure to establish whether the negative or affirmative procedure will be used, but the Subordinate Legislation Committee will no doubt have considered that in recent weeks.
I would be grateful—as I am sure the committee would be—for confirmation of which procedure will be used. Given the nature of the subject matter, I expect it to be the affirmative procedure but, if it is not, I hope that we can have some understanding of why it is not.
We will check that out for you.
Will the minister clarify that it is not the Government's intention to move in line with the position in England and Wales on the retention of DNA?
Given that the position in England and Wales has been traduced, if I can put it that way, by the European Court of Human Rights, the short answer is no. First, it would be impossible to do that, given the views of the European Court of Human Rights. Secondly, we think that, as people in other jurisdictions have said, we have the correct balance. We must recalibrate it, and that is the point made by Mr Maxwell in relation to the need to consider the issue of serious violent offences committed by young people. We are also considering whether the retention of DNA samples should apply to offenders who receive fixed-penalty notices. However, we believe that indefinite retention of such samples has been shown to be illegal by the Marper judgment and that, in any case, it was not the appropriate way to go.
When we took evidence from Chief Constable House, I questioned him on whether there are opportunities to prevent crimes from taking place at a later stage by identifying offenders at a much earlier stage. Do you not recognise that the system that is in place in England and Wales is a very effective detection method at a very early stage of the criminal's career?
We recognise the benefits of DNA evidence in, for example, the successful prosecution of Peter Tobin in the Vicky Hamilton case, which was to the great credit of both our police and the Solicitor General. Such evidence is used for detection, but I remind Mr Martin that the Marper judgment has been issued. That is the position in which we find ourselves not only in Scotland but south of the border and that is why courts have been saying that they think that the current position in Scotland strikes the correct balance. I pay tribute to your colleague Cathy Jamieson and others who put us in this position at the outset. For the record, we do not want to go down the English route because we think that we have the appropriate balance, subject to the outcome of the matters that we are checking. Moreover, we cannot take that approach because of the European court judgment.
For the record, I confirm that the position on DNA was introduced by an amendment that I lodged to the Police, Public Order and Criminal Justice (Scotland) Bill—not that I do not want to give credit to Cathy Jamieson where it is due.
I am a great supporter of the excellent work that forensic departments the length and breadth of Scotland do. I have seen the forensic department in Glasgow and pay great tribute to it. Indeed, it was a privilege for me as Cabinet Secretary for Justice to present an award—I have done it two years in a row—to those who have done sterling work. However, I am not quite sure what you are suggesting. I recognise the great benefits of forensic science to law enforcement.
The question is clear. I posed the same question to Chief Constable House, who understood it. Could we have detected Peter Tobin earlier if we had been able to retain DNA samples decades ago?
I am not qualified to comment on the Peter Tobin case. You would be better asking my former school and football colleague Detective Chief Inspector Keith Anderson—now retired—who was the investigating officer, or Frank Mulholland, the Solicitor General, who prosecuted the case. I cannot comment on what could or should have been done. I am delighted at the excellent work done by Keith, Lothian and Borders Police and every other police force north and south of the border that collaborated and delighted at the sterling work that the Solicitor General did in bringing Peter Tobin to justice for the murders of Vicky Hamilton and Angelika Kluk. Beyond that, I cannot guess; I have never seen the files.
Do you accept that the DNA retention opportunities that are provided to us allow us to identify criminals at much earlier stages of their careers? Yes or no.
Absolutely. That is why the Government is ensuring that the Scottish Police Services Authority is properly resourced and that the appropriate steps are taken to ensure that forensic science is all that it can be in Scotland. I pay great tribute to our forensic science officers in the SPSA.
One might have considerable sympathy with what Mr Martin suggests, but there is a prohibitor in respect of the European court judgment, is there not?
Yes.
That is as far as we will get today. Mr MacAskill has kindly agreed to fit in an extra meeting, at which we will deal with the licensing issues that arose last week. At that meeting, there will also be the opportunity to raise a number of other issues that we did not get time to deal with today. This morning's meeting has been exceptionally useful and exposed the cabinet secretary to fairly intensive examination on the Government's policy. I thank Mr MacAskill and his officials for attending.
Meeting suspended.
On resuming—