Item 4 is another round-table evidence session, the purpose of which is to allow participants, many of whom have given evidence to the committee, to comment on the Cabinet Secretary for Justice’s recent letter, which indicates that the Scottish Government will at stage 2 lodge amendments that would potentially significantly alter the bill. Copies of the letter have been circulated with committee papers.
I welcome participants. I will waive going round the table, because we know pretty well the organisations that the participants represent, and everyone has a copy of the plan.
Who has not done a round-table session in Parliament before? I see that a few witnesses have put up their hands. This is like being at school.
The session is mainly a matter of witnesses interacting among themselves, with committee members playing a lesser role, although they will come in with questions. That can be a more efficient way of getting evidence.
If witnesses indicate to me when they want to speak, I will take names and call out the list of those who are waiting to participate.
I see that Professor Tata wants to start us off.
I got very excited—
That is enough; we will just stop you there. Don’t spoil it. [Laughter.]
I got very excited when you said that there was a plan in front of each of us. I thought that it would be the plan for what we were going to do. Of course, I see now that it is the seating plan. [Laughter.]
The proposals would see one of the most far-reaching changes for a good 20 years to the system of release. That is not to say that there should not be change, but we must think about the proposals much more carefully. There needs to be proper consultation and a proper process. It is worrying that significant changes would be introduced at stage 2. My feeling is—it may be others’ feeling, too—that it would be rather late on to do that. We need proper and systematic consideration of, and proper consultation on, the proposals.
I agree. I also suggest that the timing is important in the sense that most sentencing scholars and reintegration scholars would agree that you cannot look at release in isolation from sentencing. If we were looking at hospital management, we would have to think about discharge and admissions at the same time.
Given that it has recently been announced that the Scottish sentencing council will be established and operational this year, it seems to me to make sense at least to pause and consider the possibility of consultation of the sentencing council on the connection between what we sometimes refer to as front-door sentencing—the sending in—and back-door sentencing, which refers to release arrangements.
11:30
I think that the committee appreciates that very strong connection.
Ms Gailey was nodding. Do not nod or I will come to you; it makes you a target.
The RMA’s perspective on this is from the angle of risk and public protection. Some of the changes that the cabinet secretary’s letter referred to, or alluded to, appear to be relevant to that perspective.
From that perspective, I also think—going back to what Professor Tata said—that there is a need to understand the particular individuals and cases that are causing the concern that is behind the policy move. There is a need for scoping—of the numbers, the characteristics and the circumstances that lead to concerns—so that resources can be targeted at the right group.
I concur with both sets of comments so far, and will say something about both, because they are slightly separate.
On consultation, the committee will know that we are currently evaluating the multi-agency public protection arrangements. Although the detail of how we might manage individuals post-release is far from clear, it is reasonable to assume that managing them will require a multi-agency approach. That MAPPA evaluation is on-going. It may be wise to roll the lessons that are learned from it into practice in management of the group of offenders to which we are referring. That is important.
I also want to endorse the focus on risk and risk management, and the importance of professionals from a variety of disciplines understanding individual risk and the risk management plans that mitigate those risks.
My contribution is to confirm the two statements that have been made so far today.
When is the MAPPA review due to conclude?
The national report should be published around summertime of this year.
Thank you. Professor McKendrick—I mean Professor McNeill. I am sorry.
Because I have this tie on, I assumed that you would get the name McNeill right away, but never mind. [Laughter.]
I am sorry, but what was it that you said while my back was turned? [Laughter.]
It is the ancient McNeill tartan of Colonsay.
I am so sorry that I am not au fait with the McNeill tartan. I will remedy that tonight.
Never mind. It is a small but important point.
Well, you have made a big issue of it. This is a bad day.[Laughter.]
Go ahead, Professor McNeill.
On the question of risk, it is important to be clear that release arrangements effectively change the duration for which we choose to store the risk, to use a crude expression. However, in terms of the timing of release, the release arrangements do not in and of themselves do much to mitigate risk.
Investment in risk reduction and, thereby, in public safety is about how we configure our prison regimes, but it is also about how we configure post-release support. If we take a rough estimate of 400 additional prison places to accommodate the numbers in this instance—we think that it is a conservative estimate—that £40,000 per place per annum will cost £16 million. We have to be pretty sure that that investment is buying us improvements in public safety. I do not think that storing risk for longer buys us improvements in public safety. That is my caution.
I would echo the comments that have been made so far.
We have two concerns. One, which the Law Society of Scotland pointed out in its submission, is that no evidence-gathering exercise was carried out prior to the legislation being mooted early last year. In fact, the Law Society goes so far as to say that there is no solid empirical basis for the proposals; I think that the Howard League would echo that.
My goodness! That is a bombshell.
Well, as Professor McNeill said, if we are going ahead with this, do not we owe it to the public to be more sure of our ability to deliver on the policy objectives that were stated in the initial memorandum, given the potential increased cost to the public purse? The issue is not just an increase in the number of prison places; there could also be increased numbers of legal cases being taken on. If you have more people in prisons who cannot access rehabilitative programmes—we know that the offer in that regard is already inadequate—you might find that, as we said in our initial submission, people will make claims of arbitrary detention by saying that they want to prove that they are not a risk but cannot do so, which means that they are being detained arbitrarily.
Another concern that I have, and which I mentioned in our most recent submission, concerns the fact that we are discussing an issue that will significantly alter the bill on the basis of a two-page letter. As I went through the submissions, I was struck by the fact that all that I had were more unanswered questions. Has the judiciary been consulted, given that it is a key stakeholder? We do not know. What impact will there be on the prison population? The Scottish Prison Service says that it will need more resources. How much money has been set aside for that? Prison is expensive, so what is the likely total cost to the public purse? We do not know.
We do not know about the guaranteed period of supervision. Will it be tagged onto the end of a full custodial sentence? Will it be incorporated? There are many unanswered questions. I am concerned about the fact that the committee is moving towards its stage 1 report without having any of that detail in an updated policy memorandum.
Do not worry about the committee—I think that some of the questions that you have raised are in our heads, too. You have added some, but I am sure that members had questions about how the policy can move forward without looking at sentencing, and whether the period of supervision will kick in during the sentence or after it has been served. I think that we are all aware of those issues.
The discussion so far fits very well with our point of view. Taking time to work all this out in a coherent way rather than doing it piecemeal would be tremendously helpful. There is a huge amount that we can do to draw things together; we can look at the whole picture from the point at which someone is arrested right through to the end of the process—whether that involves their release, or diversions from prosecution, or custody. If we tie it all together, we can come up with something that will work properly for individuals and will fit with what the SPS seeks to do.
It will also fit with what society wants.
Yes.
I recognise and acknowledge the previous comments, but Victim Support comes at the issue from the victim’s perspective and we support the ending of automatic early release, the extension of the bill to all long-term prisoners and a period of post-release supervision for prisoners.
We want greater clarity and transparency in the system, so that victims and the community are better able to understand sentencing. In our experience, a lot of victims do not currently understand the system; they do not understand what part of the sentence is custodial and what part is served in the community. We want to work towards something that provides more clarity to them.
To some extent, we are discussing the unknown unknowns. However, there are also known knowns. Last Friday, the SPS had 7,475 people in custody. We had 318 on home detention curfew, giving a total of 7,793. We have current design capacity of about 8,000, and we have housed significantly more. Some of the current arguments are not based on the fact of the number of people that we can house.
The second issue is that the SPS is not paid on the basis of cost per prisoner place; there are additional costs that we are trying to work out. Those costs are based on a small proportion of individuals potentially being motivated to take on programmes further to moving through a parole process, rather than being liberated. It will not be a huge number, but we are still trying to work our way through what the numbers mean for the SPS.
My final point is on the impact of the policy. We have estimated from Scottish Government figures that there would be about 410 additional people in custody at the end of a 12-year process starting two years from now.
Those are some of the knowns in the system. I am happy for people to discuss the unknowns.
On that, I would just say that it may take 12 years to get to the point of having to spend the extra £16 million, but you will then have to keep on spending because the overall increase in the prison population will work through the system and you will be left with larger capacity needs than existed before because of a legislation change that is not based on evidence around public safety, as far as I am concerned.
On Sarah Crombie’s point, I agree that there is a problem about clarity and truth in sentencing and that the current arrangements do not sufficiently explain or make clear to the public or to victims of crime, or indeed to people who are sentenced for offences, what the effect and meaning of the sentence is. When something that is currently called a custodial sentence is passed, something much more complicated happens, which is that people are required to submit to a range of different forms of penal control, some part of which is custodial and some part of which is community based. In fact, in order to meet effectively the objectives or purposes of sentencing, those elements need to be combined; it is not possible to do the rehabilitative and reintegrative part of the punishment effectively unless there is a properly designed and resourced community part.
For that reason, I agree with Sarah Crombie’s point. I think that a change in the language and the way in which the arrangements are described is crucial to enhancing public understanding and public acceptance—although that is not the same thing as actually changing the arrangements.
No.
Mr White is next.
I support what Fergus McNeill has just said. I think that clarity in sentencing is a—
Fergus, Pete—you are all cosy in here. I do not know.
Mr White.
Thank you, Ms Grahame—[Laughter.]—convener.
Recalibration of sentencing—so that when a sentence is announced or laid down in court it relates to a real time, rather than its being something that has been chopped and changed around—would be very helpful indeed for everybody involved, from the perpetrator who has been convicted, to the victim. A huge amount of clarity is required, but we have the potential to join things together and to come up with something coherent, which we do not have at the moment.
I, too, have sympathy with the view that there is a real lack of clarity and transparency in sentencing, but provision of clarity is not how the bill is being advanced; it is being advanced on the basis that it will improve public safety. It does not have as a stated policy objective that it will improve clarity in sentencing.
No, it does not, but that is an interesting point to make while we are considering the bill.
Some interesting points have been raised that were not raised previously. I have a particular question on the spirit of the bill and how it was put forward in a staged manner to try to end automatic early release for all offenders. I think that that was welcomed by Sarah Crombie, for example. However, has the view changed, such that people around this table do not now believe that a staged approach should be accepted? I do not remember hearing that when witnesses gave us their views previously. We heard a lot about how a staged approach was maybe too little or not safe enough; whereas now some maybe believe that the Government is taking too big a step. I just want your views on whether we should have a step-by-step approach or whether we should stop that approach altogether and consider everything as a whole.
In an ideal world, one would look at the whole thing together. I might be wrong, but I think that Victim Support asked in its submission why we should look only at long-term prisoners. I have some sympathy with its view. If we were really looking at the issue seriously, we would look at the whole thing. Indeed, back in 2005, the Sentencing Commission for Scotland produced a report on release that also noted that there would need to be recalibration of sentencing, so it looked at the whole thing. Unfortunately, the Custodial Sentences and Weapons (Scotland) Bill as introduced made a bit of a hash of the commission’s report.
However, ideally one would want to look at the whole thing systematically. The problem is, of course, that we just do not know how. We have two laudable aims, but that is all they are. The big question is this: how do we combine those two things? We are trying to square the circle in that regard. As Miss Mackenzie said, we are just left with more questions than answers.
11:45
Does somebody else want to come in? Witnesses have to indicate to me that they want to speak.
I am open-minded on the question of reforming the arrangements for short-term prisoners. There are pragmatic reasons why it makes sense for such prisoners to be processed in a slightly more automated way, but the problem in Scotland is that those who serve sentences of less than four years are not subject to post-release support and supervision. Those people are often at the highest risk of reoffending, even if they are not likely to cause very serious public harm.
The £16 million figure that I have mentioned would roughly triple the budget of the Scottish Government’s change fund, which is a recent initiative to try to enhance support for the specific population that I have mentioned through public social partnerships. That would be a massively more effective investment in public safety than spending £16 million on 400 new prison places.
We are aware that there is no statutory support for people who serve sentences of less than four years. We have raised the issue regularly in the Parliament.
Who would like to speak next among the witnesses before I move on to another committee member? Mr White wants in.
I wanted to—
Mr White wants to comment; then I will come to Christian.
I will repeat something that I said to the committee on my previous appearance. The bill enables governors to release prisoners one or two days before the end of their sentence. As I have said, it is very important that, whatever happens with the rest of the bill, that opportunity is made available now.
I think that we are all happy about that bit.
I am delighted that you are happy—thank you.
Perhaps I should say that we are content. The bit that you mention is not an issue for the committee; the issue is the other changes that are being made.
I seek clarity. Are the witnesses against the ending of automatic early release?
I am not against changing how it is described, and I am in favour of the concept that, when a judge determines that it is essential for reasons of justice that somebody serves a custodial sentence, they should serve a custodial sentence and they should be supported and supervised on release to ensure their reintegration. That is a matter of both public safety and rights, because they should be restored to a position whereby they can contribute effectively as a citizen in the same way as we are all expected to.
In the experience of imprisonment—Pete White can speak about the issue better than I can—in many respects the release phase is the most difficult phase, and if we do not get it right and give people the support that they need to make a contribution to society, we all suffer the consequences. Combining the custodial part of a sentence with a community part, whereby guaranteed support is made available, makes very good sense to me.
It is unhelpful that historically we have described the system as automatic release; it was even more unhelpful when we called it automatic unconditional release, because it was not unconditional. That led to poor—I was going to be rude about the previous political discussions of the issue. There was poor policy making because there was a reaction to political debate about a set of arrangements that were not poorly conceived in the way that they operated but were poorly presented to the public. Those are two completely separate issues. The truth-in-sentencing issue is important for public confidence, but it has very little to do with public safety. Therefore, the way that the system is described is important. However, for public safety reasons, and for reasons to do with the right of reintegration, it is critical that the system combines custodial sentences with post-release support.
You say that the sentence should have a custodial part and a community part, so that all that is embraced within a sentence of sorts. How would you technically put that into legislation? When the courts declare a sentence, would they have to say, “You will serve X years as custodial and X years as community”? Alternatively, would the system be more flexible than that?
Two systems immediately come to mind. In many continental jurisdictions, an initial judge or judge at first instance says, “The punishment that you deserve for this crime is 10 years,” and the case is then passed to what is called an implementation judge or—I will do my French—a juge de l’application des peines.
See these McNeills? [Laughter.]
It is the auld alliance.
The JAP—to use the shorthand—then determines the best way to execute or implement the sentence. That judicial figure has the authority to determine the point of release and the conditions of release, so they have a function that in our system is currently fulfilled by the Parole Board. Because they are judicial authorities, they have due process protections and are compliant with the European convention on human rights. That is their mechanism for dealing with it.
In that system, you do not necessarily specify at first instance how the split in the sentence between the custodial part and the community part will work out. That allows you to incentivise the person in prison to co-operate with the regime and to participate, in the way that our parole system is intended to do, but it retains a judicial involvement in determining the meaning of a judicially imposed sentence. For that reason, that system has merit.
Parole systems function in many common-law jurisdictions, and they function relatively well to protect public safety and help with deliberations about the correct moment of release, but they are bedevilled by the problem of being unable to express clearly and simply what the sentence means, because that changes in response to how the person reacts to it. We have to decide whether we want a system that is absolutely transparent and explicit but is blunt in how it handles individual cases or a system that is a little bit complicated and in which we have to trust discretionary decision makers to exercise professional judgment in the collective best interests of the public. That is a political choice.
Ms Mackenzie, do you want to comment?
No.
Oh—I was told that you were next. We cannot get the staff. I call Elaine Murray.
Although, in principle, I like what is now being suggested better than the previous suggestion, I am uncomfortable with the way in which it is being done. It was originally an amendment to the Criminal Justice (Scotland) Bill at stage 2, it came back as a bill, and now the bill is going to be significantly amended at stage 2. I am uncomfortable with that process.
Professor Tata mentioned the Sentencing Commission, which reported in 2005, and there was subsequently legislation, with the Custodial Sentences and Weapons (Scotland) Act 2007. However, I understand that there were a number of issues around that, some of which were flagged up by the McLeish commission, and the act was amended by another act in 2010, which I think was the Criminal Justice and Licensing (Scotland) Act 2010. How different is what is being proposed from what was possible after that act?
It is a very interesting question. I suppose the answer is that we do not know, because there are no principles in what is being proposed. There are just two bold intentions—that is all—and we end up simply speculating about what things might look like.
One option might be to use one part of the Sentencing Commission’s 2005 recommendations, which was then followed up by the 2007 act, which is the combined sentence regime that Professor McNeill alluded to. I agree that that has merit, because we can say, “This is the custodial part and this is the community part,” and they are part of one overall package. That is a fairly sensible thing to do.
Again, however, we are speculating, as we do not know what is intended. It is an incredibly thorny issue, so I have great sympathy with the Government and the officials who are trying to work out what to do, but that is why we need a proper process of reflection and review to work it out.
So the recommendation would still be that the bill is withdrawn and the sentencing council considers it, rather than that we press on with a preferable amendment to the bill.
I would guess so. If you can keep the bit that Mr White mentioned about the one or two days, that would be good, but with the rest of it, one is left scratching one’s head about what is intended. We end up speculating, and I am not sure that that is the best way of going about it. However, I agree that the combined sentence idea has real merit.
You will have seen from the evidence submitted this time that we, as witnesses, round-table participants or whatever we are today—
You are witnesses.
—are all in a difficult position, because we do not know what is being proposed. We have option A and option B, and we have tried to interpret the minister’s intentions.
If the intention is that we have a system in which the prisoner, if they do not satisfy the Parole Board, may max out and complete their custodial sentence and then be subject to further compulsory supervision, that could not be supported and I doubt its legality. There is a fundamental problem with that, if that is the proposal.
If the proposal is that we have a period of compulsory supervision that is part of the original sentence, we will be back to a variation of what we currently have. We would just be changing the moment in the process at which we determine that we must release.
Neither of those proposals strikes me as being adequate and neither of them will address the truth-in-sentencing objective or the broader questions of retributive justice. The evidence base on which we could assess their likely effect on public safety has not been presented to us, but my general understanding of the issues, from criminological research, is that there is very little reason to believe that lengthening the time spent in custody will have a net positive effect on post-release outcomes. There is no reason to believe that that will be the case, so it is back to the drawing board, to be frank.
In answer to Elaine Murray’s very interesting question, I should say that the key difference in the 2007 act is that it, unlike the commission’s 2005 report, failed on—or chose to ignore—front-door sentencing. That was the biggest problem of all—as well as the fact that it tried to push things down to 14 days, which is the other key difference.
So that was not rectified by amendments introduced by the 2010 act.
No. You have to look at front door and back door together, as Professor McNeill said earlier. That is crucial.
There is a danger that we are missing the point. As Professor McNeill said, for eight years we have been looking at automatic early release. We have a bill in front of us that is not fit for purpose and we are now looking at a stage 2 amendment that will radically improve the bill, but it will not give total transparency in sentencing. If you want that, you move to Victim Support Scotland’s point of view and do away with all automatic early release.
The point that is being missed is that the bill’s raison d’être was supposed to be public safety and, if that is the case, reoffending rates and the revolving door must be looked at. There is a very real danger that if we put this issue to the sentencing commission, we put it into the long grass. We would delay things even further and not look at what is happening now in prisons or even whether prison sentencing, including community sentencing, is the proper disposal and whether decisions on it are based on the full facts available. Are the full facts available at the point of sentencing?
At this stage, we are very much in danger of saying, “Yeah, it would be great to have consultation,” and, “Yeah, it would be good to put it to a sentencing commission,” but what would the remit be, how long would a commission take to report and what would happen to the rehabilitation of people—that we know is not taking place in prison now—so that they do not present a threat to the public? By just narrowly looking at what early release will mean once the automatic part is out of it and how we deal with the problem of cold release, we are missing the big picture, which is very dangerous.
I think that you were giving evidence there. Who am I to challenge you? You frighten me sometimes—but only sometimes.
Well, that’s an achievement. [Laughter.]
I agree to a certain extent. At the end of my submission with Dr Barry, there is a suggestion that if we really want to look at public safety, we have to look much more seriously at reintegration. That is clearly related to the question of release, but the technical arrangements for how you do release do not address the question of reintegration at all.
To be fair to the Prison Service, in its organisational review, the resulting reform efforts and its response to the committee’s work on purposeful activities, energy and effort are going into reforming prison regimes constructively. However, that will take time and resources. If the Prison Service’s resources are deflected into absorbing increases in the prison population, the service’s likely capacity to do the creative and constructive rehabilitative work that we all want will be diminished. Therefore, we have to hold the prison population down in order to improve the quality of prison regimes and so that we can spend the money making the reintegration process effective. That is why we have to deal with the front-door issue at the same time, because if we are not serious about how we control and manage the prison population in the first place, we can forget rehabilitation and reintegration. That work just will not happen and we will have an overcrowded and inefficient system that warehouses people and then ejects them back into society in conditions that are dangerous for them and for others.
12:00
The argument that it will take a long time before we can agree on a good way forward to deal with release for those on long-term sentences misses the point that long-term prisoners are less likely to reoffend than short-term prisoners. We should thank the SPS for the work that it does to support long-term prisoners, because its effectiveness is evident. We should not gloss over the fact that it is short-term prisoners who go out and come back. At the moment, there are more than 20,000 liberations from prison a year, and those are not all long-term prisoners—not by a long shot. It would be helpful to get rid of that, but to rush into—
I am sorry Mr White, but I want us to focus on the bill. I perhaps should have said that earlier. We agree that there are all those other issues, but the bill was apparently flawed at the start and, from what you are saying now, it is still flawed.
Yes.
Big changes are proposed that have not been properly consulted on, and there is the impact of that and we have the sentencing council. I want us to focus on that, because we have to write our stage 1 report for the Government about the issues. Obviously, you know about that from listening to the discussions.
My apologies for straying.
It is not your fault. I let the discussion run a bit, but we need to be focused. I think that we can accept the provision on releasing people on different days of the week. That is not an issue. However, there is an issue about whether the other measure in the bill is curable or whether we just say that it cannot be amended.
As we know from the Criminal Justice (Scotland) Bill, stage 2 can be set forth and then a long time can be given to take evidence. We need to consider whether the bill can be amended in the way that the Government is suggesting or whether it is so big an issue that we have to start again, notwithstanding the important point that Margaret Mitchell raises that we have been a long time getting here. I seem to be hearing from you that we need to start again, but it would be helpful to the committee to make that clear.
I think that we should start again.
I agree.
I agree.
The Government makes it clear in the policy memorandum that there has been no formal public consultation, as the measures are a manifesto commitment. Where does a manifesto commitment come in?
I think that a manifesto—sorry, convener.
That is fine. Just interact.
If I am not mistaken, it was a manifesto commitment in the 2007 election, although I know that there was a minority Government after that. I think that most of the parties had that as a kind of slogan.
It was not a slogan.
As a headline point, then.
As a principle.
Indeed—as a principle.
Thank you. That is what we are talking about.
Forgive me, Professor McNeill, because I do not have your original written evidence, but you have alluded to the point that I wanted to raise. It is about the circumstances in which we as parliamentarians find ourselves discussing things and the extent to which public opinion, whatever it may be, shapes that. Earlier, you talked about the background that has given rise to those manifesto commitments. We might say that it is positive that we have a cabinet secretary who in a short period has listened. Will you comment on the circumstances in which law has been made and whether this is the best way to do it?
I do not want to open up a big discussion on that.
It relates very much to the circumstances, which have changed in a short period.
This is a stage 1 inquiry, so I want to focus on the specifics of the bill. We would perhaps accept that there are good intentions but, because the Government has, as a result of evidence that we took previously, proposed changes, we want to see where we are going with the bill so that we do justice to the issue.
You seem to agree that you want to end automatic early release—I did not hear dissent from Christian Allard’s point—but are you saying that this is not the best way to do it?
This is maybe too philosophical, but you can have populist democracy or deliberative democracy.
Or both, combined.
My point is that in an area of policy making as complicated as this, in which it is important to get it right, you need a deliberative process that involves public consultation, debate and dialogue about the issues, which is not reactive to the misrepresentation of the existing system in the media and public discourse. That is what happened in 2006-07. When the Custodial Sentences and Weapons (Scotland) Act 2007 was passed, when I was advising the then Justice 2 Committee, the deliberative process in the committee was excellent, but there was an election looming and stage 3 went a different way from where I thought the evidence had been leading the committee. I understand the realities of that; I am not naive about it. However, it is critical for there to be cross-party political leadership in a deliberative democratic process about how to get this right. It is too important to mess with in the populist way.
I do not think that we dispute that.
I wanted to ask Mr Murch for further evidence beyond what we heard from Mr McConnell about the workings of rehabilitation programmes—for want of a better term—in the Prison Service for reducing reoffending. How much of a delay is there in getting on these programmes?
Last year we delivered around 1,400 programmes of approved activities to prisoners around the estate. There is a waiting list. We base that on critical dates, but it is more complex than that. Some prisoners will deny that they have a problem until very close to their critical date and then they will try to move up the list. Some people are recalled into custody. We currently have about 675 recalls in the system who we have to mobilise quickly, which means that it is not reasonable to expect that we can always catch everybody who scores with a lower need.
On the Supreme Court, the point was made about potential legal challenge. There is no jurisprudence that would suggest that there was a risk with determinate sentence prisoners. We would have to say that at this juncture. The organisation review has been mentioned. The Scottish Prison Service is looking to turn around a number of its processes, including conducting a full psychology programme review to ensure that we see the gaps and are able to mobilise better. We are changing the way our staff operate to ensure that they can do brief interventions and different types of intervention activity, not big programmes.
This is not just about programme delivery. Prisoners change and are rehabilitated in work that builds their social capital. There are linkages back into society as well; they learn skills and think in different ways about how they do things. As for the past year, the Prison Service for the next five years will be concentrating on changing how it does its business and the role of prison officers. That is quite a big ask. It is a big training task for the organisation. It is about changing how we do business.
We have also committed to having 42 throughcare support officers. The reason for that is that the Prison Service recognises the importance of throughcare and the fact that real rehabilitation happens in the community and people need support in order to reintegrate back into the community. In other words, it is about waking up to the fact that it does not stop at the prison gate.
The committee is well informed on that.
I reiterate that we support the ending of automatic early release. To us, it takes away from the complexity for victims in understanding when the offender is going to be released. We often get phone calls from people saying that they did not understand the sentencing at the front end and now they have received a letter to say that the offender is up for release into the community.
We absolutely recognise the importance and relevance of supervision and reintegration into the community. It is a matter of ensuring that the victim has their choice, and that they are aware of it. They should have a choice when it comes to any perceived risk to their personal safety. If they do not wish to bump into the offender in an area where they know they may be, it is their choice to avoid that area or to move their kids from school if they so wish. It is important to the victim to have that awareness and understanding.
Would your organisation have concerns if the ending of automatic early release—whatever we call it—was deferred for a considerable period?
I believe that we would, yes.
That is where we need your assistance with regard to the letter from the cabinet secretary and how it would be possible to move the bill forward rather than kicking the matter into the long grass for a long time, as Margaret Mitchell was saying.
I can see that. The problem is that the letter from the cabinet secretary is trying to combine two things, but how you do that is a big question. Both things are virtuous, and we would probably agree with both of them. To that extent, it is a good thing, but the big question is how to do it. There is a whole range of questions of principle, practice and logistics. The basic principles need to be thought about first.
There is a worry about rushing it. As Margaret Mitchell said, we have had eight years, perhaps for understandable reasons, but it now feels as if there is suddenly a desire and an urgency to do things straight away.
Even if it is possible for a committee to ask to defer a stage 2—or for the Government to do so—or for the committee to take further evidence on specific amendments, how would one manage that? Would it be manageable to do that, rather than deferring the matter for years and years again? At least if we have something in front of us, we have to do something—we cannot just extend the process.
The work of the committee is absolutely to be welcomed, but I guess that the committee has then to respond to the Government amendments. The question is how the Government will come up with such amendments if it does not consult and have time to think them through.
That is what I am saying. It is not necessary to keep to a short timetable at stage 2. The committee can ask for time to take evidence on amendments, almost like another stage 1.
True, but that is necessarily to react to amendments lodged by the Government, and my concern is how well thought through those amendments will be and how imaginative the committee can be in that situation.
To pick up on a point that Sarah Crombie made, if the Government and the committee choose to persevere with the bill and choose option B—not involving additional supervision but working within the framework of the existing sentence—to meet Victim Support Scotland’s legitimate demand for clarity, the bill would have to include provisions to change the way in which sentencing is described, explained and made clear in the first instance. That is not currently a purpose or stated intention of the bill. There is a problem there. That might be remediable through parliamentary procedure, although I am not an expert on that.
Eyebrows are up—that is not within the purposes of this bill.
A second point is that, if we go down that route and consider option B, which is a period of compulsory supervision within the existing sentence, the key question is what evidence base you would review at stage 2 in order to arrive at a determination about the timing issues. You have already identified that in your questions to us in advance of this evidence session. We have not been very able to answer them clearly, because we do not know the clear intentions of the bill. Monica Barry and I have given you our best guess about how we would frame it if that was the intent.
To me, the fundamental problem is that we are muddying the waters by talking simultaneously about clarity in sentencing and public safety. Those two issues are related and they are both important, but we cannot tackle one by doing something that claims to be about the other. Victim Support Scotland’s position is completely understandable from the perspective of victims’ legitimate interests in having clarity and understanding the situation that they are in, but I find it hard to see how the bill, which is crafted around public safety, can address their legitimate interests.
12:15
Before I bring in Ms Mackenzie, I have just been checking and I have been advised that it might be possible to get that clarity about sentencing and so on in the Criminal Justice (Scotland) Bill, which has a much wider remit. I might be clutching at straws, but that might be a possibility.
Some of the points that I wanted to make have been covered by Professor Tata and Professor McNeill, but I return to the point that an assumption is woven into the bill that keeping people in jail for longer is what will improve public safety. A lot of us are asking where the evidence base is for that.
As I said at our previous meeting, if you advance a bill on the platform of improving public safety and you trumpet the measures that you are taking, saying that they are wonderful and they are going to improve things, but then something happens, you run the risk of increasing public levels of cynicism about the criminal justice system, which as we know—and as Victim Support Scotland has said—are already quite high. People do not understand a lot of sentencing policy. If you advance something on a platform, you must deliver on it. Otherwise, you could increase cynicism about the criminal justice system, which is not what any of us wants.
I do not think that we are content about cold release. I think we have taken that point.
A point was made about the committee reacting to the Government and the letter. Of course we need to do that, but we also need to react to what we hear in evidence from the panels that come before us, and my recollection is that we have concentrated pretty well on cold release. It seems to me that the Government’s letter proposes that cold release does not happen. I would like to hear some comments on that. Have I got it wrong? Is that not what we have been told by the cabinet secretary?
That is what the letter says, but it does not tell us how. That leaves us in a conundrum about option A or option B. As I said, option A is not workable, from my understanding of the law and the evidence. Option B is workable, but it does not address Victim Support Scotland’s concern, because in effect it creates a new system of automatic early release but calls it something else and changes the dates. That is the net effect of option B. Unless the bill can be amended or some other legislative device can be found so that something is done about clarity in sentencing in the first instance, we cannot address Victim Support Scotland’s concerns appropriately or deliver what it is requesting.
I invite the witnesses to comment on an alternative. We know that the 2007 act and the amendments in the 2010 act were passed but not implemented. Would another possibility be to pass the bill but not implement it until some of the front-end issues have been addressed?
We have been there. The 2007 act is still sitting on the statute book unimplemented. That is part of the political pressure that led to the current effort. I do not think that it makes sense to pass legislation that you know you are not intending to implement.
It would not be implemented until certain other things have taken place. That is what was supposed to happen.
You are right about that, but we are still a long way off the 5,000 figure, which the McLeish commission recommended as the point at which the 2007 act might be implemented.
I agree. I am not sure that Elaine Murray was suggesting this, but I am slightly uneasy about passing legislation that we think is probably not very good, in the hope that the Government of the day will sort things out. We might trust the current Government, but it worries me that another Government might be far less responsible.
I think that Elaine Murray meant to explain that the legislation would be deferred while other mechanisms were put in place.
Yes, such as the sentencing council.
In the meantime, we must ensure that any legislation that is passed is the very best that it can be. It will be the most radical change for 20 years.
That is certainly the committee’s view, as well. Please understand that.
I know.
I want to pick up on Lisa Mackenzie’s point on empirical evidence. What are you suggesting that empirical evidence elsewhere would show, in relation to public safety? Is there empirical evidence out there?
I am probably not the best person to answer that, because I am not an academic. However, I am not sure whether evidence suggests that holding people for longer, rather than releasing them and supervising them for the remainder of their sentence, is likely to lead to fewer incidents of reoffending and thereby to increase public safety. Other people around the table might want to say something—Fergus McNeill has his hand up.
Recently, the National Academy of Sciences published a report by a very high-powered commission led by the world’s leading criminologists under the leadership of Professor Jeremy Travis of John Jay College of Criminal Justice in New York. The report is on the consequences of the rise in imprisonment in the United States; it considers its effect on crime rates and reaches a conclusion that criminologists have reached before, which is that even massive increases in incarceration rates produce only marginal effects on crime rates. That is a different question from the more specific question that the bill seeks to address in relation to public safety. Obviously not all crime raises major issues of public safety, although all crime is of legitimate public concern.
I am not aware of any credible evidence that lengthening sentences in and of itself guarantees the more effective risk management that the bill seems to be trying to bring about. I am not able to put it more forcefully than that, because for obvious reasons of justice it is very difficult to do the kind of research that would experimentally test different release arrangements. We do not really get to do that kind of experiment in criminology, for very good reasons.
I can say that evidence on desistance from crime, which is more my specialised subject, suggests that it is not the timing of release, but the experience of imprisonment, access to the services that are needed, the manner of release, the support that follows release and wider issues about public acceptance and reintegration in the community that matter in the medium and long terms, in relation to someone’s potential risk or otherwise to public safety.
I have to laugh because while you were saying that Professor Tata indicated that he wanted to come in, then that he was out, then he was in, then he was out. [Laughter.] You have obviously covered everything. Believe you me, that is a fact.
There is a false argument that keeping people in prison longer improves public safety. It will improve public safety only if on release they are a threat to the public. Surely a custodial sentence should be based first on foremost on whether the individual presents a threat to public safety. If they do and there is no other way to eliminate that, there should be a custodial sentence. There should be more clarity and transparency in custodial sentencing, so I agree with Victim Support Scotland that we should abolish all automatic early release.
The key question is this: what do we do with the individual while they are in prison? We are not focusing on that. We have heard very good things from Eric Murch, but the point is that the resources are not there. Christian Allard is quite right that people on short-term sentences are reoffending more, and the way that that is escalating presents a threat to the public. I met Circle yesterday to talk about an individual who was on a short-term sentence, and for whom there was no support; none of the throughcare that is supposed to be there was there. The individual was saying that he was excited about getting out, but he wondered whether he was better off in prison. He knew that he had no housing to go and that there would be temptations when he got out. Until we address that fundamental point, neither the bill nor where are going with this discussion are fit for purpose.
You have got that off your chest and we would probably agree with a lot of it. My point is that we should get back to the bill that we are dealing with. I was quite attracted to suggestion about custodial and community parts, but that will have to be dealt with by the sentencing council and it would have to be clear for Victim Support Scotland. It may not fit into this bill.
I am sure that the cabinet secretary is listening to this. Do parliamentary procedures give us the opportunity either to cease at stage 1 and have a really thorough pause at stage 2 while there is some consultation, or for the committee to move to stage 2 and get time from the Parliamentary Bureau to take evidence and take longer over amendments, rather than park the bill?
If we did that, it would also park the issues that Pete White raised regarding release at different times of the day. I do not think that we could just go ahead with that, to be frank. The question is how we manage this so that we keep the foot on the accelerator. That would not just be for the sake of doing so; it would be in order to deliver good legislation and to get on with it, rather than going on for years again. That is what I am looking for when it comes to the witnesses’ evidence. We accept many of the issues that you have raised; I suppose that I must go round you and ask for your views.
Victim Support Scotland supports the ending of automatic early release. However, we acknowledge that further evidence may be required.
You would continue the bill process in some manner.
Absolutely.
Automatic early release could be ended, but to ensure—as per the aim in the cabinet secretary’s letter—that everyone gets a mandatory period of conditional supervision, as I assume they would, it would have to be reinvented, perhaps using another name. There are ways of doing that.
You are asking about the process, convener: I am not sure that I am the best person to answer the question.
I am not asking you about process. There are ways of resolving the matter. We accept the issues that you have raised, and we note the points about complexity and interaction with the sentencing council and other things, but how should we as a committee deal with the matter? Should we just throw the bill out and start again? Should we seek to amend the bill to make it fit the principles that the Government has come forward with? It can be done, but I do not know whether that is what you want to do, or whether you think that it is worthwhile.
At the moment, all that we have from the Government is a letter with two intentions.
Correct.
If the bill is not withdrawn, the question is then what will the bill look like. We are necessarily responding to that. My concern is not so much with the committee, which is clearly trying to do what it can. How will the Government bring forward its proposals, and on what basis? How will it consult? Will it consult? One can try to react imaginatively, but one is reacting to what the Government puts forward.
We could have the cabinet secretary in front of us and we could raise those issues. No doubt the Government is listening to this evidence. We could set out the issues that have been raised before the committee and ask whether it has solutions.
My concern is that this is—as everyone around the table knows—a technical and incredibly complex area of law. However, as you know, the matter is also politically charged: there are two elections coming up, which makes the option of giving the matter to an impartial body to consider a little bit more attractive.
I do not know what impartial body you are talking about.
I mean the Scottish sentencing council, for instance.
I do not know parliamentary procedure, so I do not know exactly what your latitude is in persevering. If you were to persevere, minimally extending the period of deliberation so that it can involve dialogue with the sentencing council and others about their plans and views on the relationship between first-instance sentencing and release decision making would necessarily be a part of that extended stage 2 process.
My fundamental problem is this, however. When the then First Minister Jack McConnell announced in Parliament that automatic early release would end, he did it under pressure, on a truth-in-sentencing point, which I think came from the Opposition in 2006-07. When all the parties on the committee at the time except the Scottish Socialist Party voted to let CSAW—the Custodial Sentences and Weapons (Scotland) Bill—go forward to stage 2, they agreed that the principles were good, but that there were flaws in the detail. They did that under pressure of an imminent election, and they were responding to popular opinion about the fact that automatic early release did not seem to be delivering justice as people understood it.
12:30We are now in a similar situation again, where, for political reasons, a new minister—I maybe should not go this far, but I will—wants to grasp the nettle and address the issue. That means saying that justice policy in Scotland is going to be smart and progressive, and that it will take social justice seriously but it will not be soft and cuddly. Grasping the nettle makes a degree of political sense. However, muddying that up with an extended discussion about risk and public safety causes a fundamental problem with what is before us.
To return to a point that I made earlier, a lot depends on whether the committee and the Government want clarity, which is Victim Support’s core point, or whether they want to pursue public safety or, which would be better, balance those two important objectives. It is feasible to pursue option B, with an extended stage 2 deliberation involving dialogue with the sentencing council and others. If I had my way, I would tear up the bill and start again and do the thing properly and comprehensively. If it is important to persevere for other reasons, however, there would have to be an extended stage 2 process.
That is fair enough. That is a fine, extensive explanation of your position, which is what we want.
My comments are less about ethics and more around how we manage the process for public protection. For me, there is an outstanding question; I refer to my earlier comments about how effective our current arrangements are and the review of MAPPA. Wherever the detail is, it will require a multi-agency response. That is important for us, and the question is around the effectiveness of our current arrangements.
Secondly, we are in straitened financial times, so the resource for managing the increased number of individuals and the greater intensity of service provision that they will require needs further examination.
We are in a process of significant public change in health and social care and we are moving from community justice structures to community planning. How effective is that, and what analysis is being done of those changing arrangements? How will integration of health and social care and the associated policy commitments impact on the set of arrangements in the bill? Such operationally focused matters require greater deliberation. If those can only complement the more procedural aspects, or the more ethical aspects around the complications of how you make law and how you address facets of law, that leads me to suggest that a further period of reflection, consultation and analysis is required.
The point that you make is very important. There is no point in making law that cannot for practical reasons be implemented.
I add that it is also a matter of understanding the impact of the law.
The financial impact—absolutely.
I am not sure that it is for the SPS to comment, except to say that we will contribute and, if and when the bill is enacted, we will be ready for it.
Thank you.
I wish to follow up on Mr McKendrick’s points. If the concern is about public protection and the management of the risk that is posed by those who present the greatest risk of serious harm, we want to get to a point where release is carefully considered: its timing, the support that is provided, and its planning and management. Given the resources that would be involved in that for the Parole Board for Scotland and community services, we need further scoping and understanding of the number, characteristics and circumstances of the cases that give particular concern at the moment. In taking the matter forward, it would be valuable to get more evidence about that.
I find myself in a tricky position here. Ideally, I would tear up the bill and start again. However, given the evidence from Victim Support Scotland and from the academics, I recognise that it is important to be positive and to move forward. If I can be assured—as I feel I can be—that the stage 2 process can embrace the concerns that are being expressed around the table, I will go with it.
I agree with Professor McNeill. My ideal would be to start again and present the empirical base for the bill to proceed. The stage 2 extension is less than ideal, but pragmatically that might be all that the committee is able to do.
I return to the point about the release period, as stated in the two-page letter. I cannot see that option A—tagging compulsory supervision on to the end of the sentence—is workable.
We are all shaking our heads.
However, option B is automatic early release by another name. That is what I mean about public cynicism—I was not talking about cold release. I completely agree with the need for clarity on sentencing, but people would say that option B is just automatic early release called something different. In which case, why should we do it?
Whether the cabinet secretary and the Government thank you for your evidence is another matter, but I thank you very much for your evidence.
We have time to call the cabinet secretary to answer the questions that have been raised; I think that we wish to proceed in that way. I am looking round for nods from my committee—I see that Margaret Mitchell has already got her pencil sharpened.
The committee will report to the Parliament on the general principles of the bill in mid-March. Our next meeting will be on 3 March—[Interruption.] Some of us do not know when we are meeting because members are talking. We are still in session. Our next meeting will take place on 3 March, when we will begin taking evidence at stage 1 of the Human Trafficking and Exploitation (Scotland) Bill. I hope that before we do that we each get the chance to report on our recent visits to various organisations. We will factor that in.
That ends the meeting. You may now communicate with each other in an informal fashion.
Meeting closed at 12:37.Previous
Agricultural Crime