Item 3 is the Custodial Sentences and Weapons (Scotland) Bill. Members should have the bill and accompanying documents together with the two Scottish Parliament information centre briefings on the bill.
As you can see, there are quite a few of us here. Given that the custodial sentences element of the bill is about the management of sentences from beginning to end, we thought that it would be helpful to the committee if we were all represented. Rachel Gwyon is from the Scottish Prison Service; Brian Cole is from the Justice Department's community justice services division; Annette Sharp and I deal with the parole aspects and general planning of the custodial sentences element of the bill; and Charles Garland is our legal adviser.
Thank you. That was very helpful, particularly your clarity about the process of handling the chain of measures, if I may put it that way.
We acknowledge that a significant burden will be placed on the Parole Board, which, along with the whole system, will have a period of dual running while the current arrangements are phased out and the new arrangements are phased in. We have already started planning for that. The Parole Board participates fully in the planning group that I mentioned. The appropriate resources and structure will have to be in place before the Parole Board takes on the new functions.
Several other issues arise. It would be helpful for the committee to have details about the changing rules of engagement for the Parole Board. We note the move from three-member tribunals to two-member tribunals. If the two members fail to come to an agreement, another loop will obviously have to be brought into play. Will you give a little more detail on the reasons behind that change and how effective you think that it will be? What will happen if the two members of a tribunal cannot reach a unanimous decision?
I will answer the practical part of the question and my colleague Charles Garland may want to confirm the thinking on the legal aspects. We have had discussions with the Parole Board on that. The Scottish ministers obviously want to ensure that the board is fit for purpose, which means ensuring that sufficient resources and the appropriate operational framework are in place before the new arrangements are introduced. We want to ensure that the board is as efficient and effective as possible. In coming to the conclusion that a two-member panel—always with one legally qualified member—is appropriate, our view was that such a practice is operational in England and Wales and seems to work effectively. In consultation with the Parole Board, we decided that the practice may be appropriate for Scotland.
That is my understanding, too. As Jane Richardson explained, the intention is to create under section 2 new Parole Board rules that will set out the ways in which the board will consider cases for release. The intention is to draft those rules as the bill is in progress, as they are an important aspect of the measures and will need to be in place when the legislation is commenced. With existing cases, the intention is that, broadly, those will continue to be dealt with under the Parole Board rules as they stand now.
Forgive me for being simplistic, but I am not a lawyer and I have not been involved in the Parole Board system. You seem to be saying that, if the tribunal is not satisfied that there are grounds for release—which includes cases in which one member is satisfied but the other is not, so there is no unanimous decision—release will not be granted. The fixed situation is that nobody will be released until a tribunal agrees unanimously that release is suitable for the individual.
Under the framework for release, individuals will always be released on licence at the 75 per cent point of the sentence. The Parole Board will have the power to direct the Scottish ministers to keep an individual in prison until that point of the sentence, after which they will be released on licence. If an individual is detained until the 75 per cent point, a fairly robust framework of licence conditions will be put in place to support the individual during the period of the sentence that they spend in the community, which will include appropriate measures for public protection.
Thank you for that clarity.
It was a question of efficiency and effectiveness elsewhere. We looked to other models for some assistance.
I want briefly to follow your questions, convener.
The minimum referred to in that briefing is the 50 per cent minimum, which—I say this without pre-empting any sentencing decisions by courts—may be seen as the norm for the punishment part.
I accept that, but the question is whether offenders who present as a high risk of reoffending and/or who pose an unacceptable threat to public safety will be released after 75 per cent of their sentence.
Yes.
Why?
Good question. Ministers have considered the point, and the debate has run for a considerable time. As the committee may have noticed, there is a slight departure from the Sentencing Commission's recommendations. The issue is whether an individual is either kept in custody for the full period of the sentence—obviously, that is the ultimate way of protecting the public—or kept under supervision in the community for a period of the sentence. In other words, the question is whether the sentence ends, the prison doors open and the individual walks away, or the work done in the prison setting is taken forward to the community part of the sentence.
I accept everything that you say. I support alternatives to custody and I think that the idea of an incentive is great. However, do you think that it is reasonable to release an individual who completes 75 per cent of the sentence but has been assessed and identified all the way through as presenting a high risk of reoffending and/or posing an unacceptable risk to public safety? Twenty-five per cent of their sentence, which could be in custody, still remains. I accept the other points, but I am curious why a line in the sand has been drawn at 75 per cent, with no flexibility to keep someone in custody for 100 per cent of the sentence.
As I said, after thinking through the options, the Scottish ministers have decided that it would be appropriate to deal with offenders by managing them both in custody and in community settings in all circumstances.
I still do not understand why. You say that the Scottish ministers have decided that, but why?
You need to ask the ministers.
This is the bill team. I am sure that they have some knowledge of what has been going on in the Executive.
I am sorry—I might not be making myself very clear. The policy is that the individual, even when they are high risk, should be managed in the community rather than disappearing at the end of the sentence. As I mentioned, they would be subject to a full package of measures, including restrictive conditions if necessary. The licence conditions would be made clear to the individual, and if they breached the conditions—or any one of them—seriously, the Scottish ministers could recall the individual to custody for the full period of the sentence.
In fairness to the officials who are here today, the committee is taking evidence from several agencies and the minister, and I am sure that we will take that issue further.
It seems to me that if someone comes before the board after 50 per cent of their sentence is served, there is not really much incentive to change their behaviour and come back when 75 per cent of their sentence is served. There is not much of an incentive to redress the imbalance. What consultation responses did you get to that particular part of the bill? What did members of the Parole Board, the public and other interested parties say?
First, the bill sets out provisions for a continuous review of the individual's detention and custody beyond the minimum period imposed by the court. Of course, that would depend on the length of the sentence. However, the broad rule of thumb is that individuals who are given a fairly lengthy sentence could be seen as more risky, if I can describe it like that. Individual offenders will be assessed throughout the period of their custody. If the risk assessment test shows them to be high risk, they will be referred to the board, but that referral will not be automatic; it will be only for those who are assessed as high risk. If the board agrees with the Scottish ministers' recommendation and directs that the individual is not released at that point, then depending on the time they have left to serve—and if it is a long sentence, 50 per cent or 75 per cent of it could be a quite considerable time—the offender will be referred back to the board. The board might therefore direct the individual's release before the 75 per cent point in the sentence if the individual has been working to address their offending behaviour or particular needs. I think that that answers your question about how an incentive is provided.
Okay. So what were the responses to the consultation?
The consultation on the measures was done through the Sentencing Commission for Scotland's work. The Scottish ministers then took the recommendations of the Sentencing Commission and published the white paper containing the plans in June. That was the publication of the plans; it was not the consultation. Although it would have been welcome, we did not receive much in the way of comment on the plans. What we did receive was broadly favourable, but more general than the specific issues about which you have asked.
A very general question leaps out at me when I read the bill and explanatory notes. Will the commitment of the Scottish Executive Justice Department and this Parliament to reducing the overall numbers of people in prison be compromised by the measures in the bill that seek to put people in jail and make them stay there, so that more people will be in jail for longer? What consideration have you given to the impact that this bill might have on that commitment?
The Scottish Prison Service has considered the proposals and the objectives to improve clarity of sentencing and integrated management. We have also had to model the impact of the proposals. In the financial memorandum is a collection of numbers where we have tried to set out assumptions of the percentage of people who might trigger assessment beyond the 50 per cent point in their sentence, and the assumptions that we have had to make in estimating how many people might breach their conditions of release and be recalled. I am happy to talk members through those figures subsequently, if they would like. The measures in the bill will have quite a sizeable impact on the daily prison population, because a proportion of the people who have been given sentences will stay with us longer. The financial memorandum looks complicated because different paragraphs refer to different numbers. I have a chart that may help.
We would be grateful if after the meeting all of you, including your colleagues on the other panel, would review the questions that have been asked. If you believe that it is appropriate for you to send short notes to the committee to clarify some points, that will be helpful. You may take our queries away with you and send something back in. I am conscious of the time and members would like to raise a number of issues.
I am grateful for your clarification and for the figures that you are able to send us. I do not have the financial memorandum to hand, but can you give us an estimate here and now?
In short, the proposals will add between 700 and 1,100 prisoners every day to the prison population.
I look forward to seeing the chart later.
I want to follow up on the previous questions about release after 75 per cent of a sentence has been served. I understand the reason for that provision—you want offenders to be integrated into the community by the time that their sentences come to an end. However, I note that if the approach is not successful an offender can be recalled into custody, presumably for the rest of his or her sentence, so it is possible for an offender to be in custody for more or less 100 per cent of his or her sentence. In that situation, how will the offender be integrated into the community? Is it proposed that there should be some kind of integration after 100 per cent of the sentence has been served?
Because it is essentially a determinate sentence, there will be no statutory requirements after 100 per cent of the sentence has been served. We anticipate that local authorities will offer voluntary assistance to offenders in that situation, but there will be no statutory hold over such offenders. Anyone who is currently released from a determinate sentence is eligible for voluntary assistance from local authority criminal justice social work. Individuals in the situation that we are discussing would qualify for such assistance.
Do you think that a voluntary arrangement with criminal justice social work is sufficient?
Because it is a determinate sentence, there is no statutory requirement on the various agencies concerned after the sentence has been served. That is why we are requiring people to be released after they have served 75 per cent of their sentence, if they have not been released at an earlier stage.
However, it is possible for an offender to spend more or less 100 per cent of their sentence in prison, if they are recalled from the community because of their bad behaviour.
Yes.
It is worth bearing it in mind that the court has the power to impose an extended sentence—in other words, an extended period of supervision can be retained. That only half-answers your question, because a determinate sentence will end at some stage. However, the judiciary has welcomed the fact that we have retained the power for the court to extend sentences for particularly risky offenders.
Will it be able to do that while the sentence is being served?
There will be a custodial period and then extended extension, if that makes sense, of sentences for up to 10 years for sexual and violent offences.
That extension is imposed at the point of sentence.
How does the court get involved?
It is a sentence, so the court would—
I am trying to work out what will happen at the end of the sentence if almost 100 per cent of it has been served. How will we put in place an arrangement that provides for extended supervision of an offender after release? When an offender has used up their sentence, is there any way for the case to be referred back to the court?
No, as Brian Cole explained.
So it would fall to criminal justice social work, using whatever resources it had.
Am I right in saying that ministers would not be able to set any licence conditions, because 100 per cent of the sentence had been served?
Yes.
The exception being sex offenders, for whom ministers retain that right.
Sex offenders would be subject to registration, which is a slightly different arrangement. When a sentence of whatever length comes to an end, any conditions imposed during the period in the community on licence will also come to an end.
I want to explore a little further the workings of the Parole Board. Who will give evidence to the Parole Board when somebody comes up for parole? Where is the evidence gathered from?
I will explain the present arrangements and then explain how we think the new provisions will work. As my colleague said, we are presently drafting the rules.
Will having only two members on the Parole Board offer a wide enough range of experience?
Yes. We want the board to be fit for purpose, but we have to be aware of the legal and human rights requirements. We have therefore considered how things work elsewhere. There will always be a legal member.
Once the tribunal has made its decision, how will information be disseminated to victims? Will victims be able to give a statement to the tribunal?
The arrangements for victim representation will obviously continue, but they will be adapted to take account of the new circumstances. Any member of the public can make representations, and the victim notification scheme will continue.
And people with a need to know will be informed of the outcome.
Yes. Indeed, we are taking steps in the legislation to ensure that the Parole Board includes someone with experience of working with victims, or with experience of actually being a victim. We will enshrine that requirement in the legislation.
Such a person would be able to inform their colleagues, even if they did not sit on every tribunal.
Yes.
There will be a significant increase in the number of cases going before the tribunal of the Parole Board. How will risks be assessed? What role will the new proposals give to the Risk Management Authority?
The bill contains the risk test, as it were, but obviously we have to build a structure below the risk test, to give a framework for assessing risk and for referring cases to the Parole Board. Earlier, I mentioned the planning group that has been set up to consider the diverse work streams that will have to be set in place before we can implement the new arrangements. The Risk Management Authority is involved in that work and will advise on the tools and the structure that will enable proper risk assessments.
The risk assessment process will involve a joint approach by the SPS and local authorities. However, the SPS, acting on the Scottish ministers' behalf, will make the final decision on whether to refer a case to the Parole Board. The joint approach will use the tools that the RMA recommends.
Who will make up the Risk Management Authority?
It already exists.
Yes, but who makes up the RMA?
It is a non-departmental public body that has a board that comprises a number of public appointments from various disciplines. It is supported by a management structure and operates under a clear, three-pronged remit that was set out in the Criminal Justice (Scotland) Act 2003 to provide, broadly speaking, a centre of excellence for risk assessment and risk management.
The offender's response in custody will be an important part of the risk assessment process. Are you confident that offenders will have access to appropriate rehabilitation opportunities?
A lot will depend on the length of the sentence. Somebody who qualifies for the combined sentence with a 16-day sentence will need to be inducted into prison, be risk assessed and go to a tribunal by day 8. It is not as feasible to do as much programme work with somebody in that period of time as it is if their sentence is four years. On a four-year sentence, the assessment of whether the offender represented a risk of harm would be made at the two-year point.
Have the resource implications for the organisations that are responsible for rehabilitation and throughcare been considered? Can you cope?
Yes. We have included in the financial memorandum the costs for the extension of the integrated case management system, which will need to go from applying to about 3,000 prisoners to applying to between 9,000 and 12,000 every year. It will cost us between £5 million and £6 million per annum for the extra staffing to roll out that increased service. I ask Brian Cole to respond on throughcare.
We have done similar calculations for the bill's impact on criminal justice social work services and related agencies for offenders who are released on licence. Our current estimate for the cost of supervision in the community plus the contribution to the risk assessment process, which is in the financial memorandum, is somewhere in the region of £7.95 million.
I will focus on the community part of sentences. The explanatory notes to the bill talk about the different levels of supervision that an offender may expect when serving their sentence in the community, such as the licence restrictions and the intervention that they could anticipate. Will you elaborate on what that intervention will mean in practice and who will carry out the supervision?
In the bill, we propose a cut-off point of six months for supervision intervention to kick in. It is recognised that those who are serving sentences of six months or less—and of course 15 days and more—will be subject to licence, but given the short duration of the sentence, the maximum period will be no more than three months. Professional opinion suggests that not a great deal can be done in terms of supervision for a period as short as three months or less. For those serving more than six months, we anticipate that supervision will be undertaken by local authority criminal justice social workers. The intensity of the supervision will be informed by the risk assessment undertaken during the course of the sentence. For those who present a higher risk, the level of supervision will be more intensive. That supervision will not just involve the work done by local authority social workers; it is the extent to which people can be plugged into services, for example treatment services for those with a drug problem.
What does that supervision entail, for example for somebody who has been sentenced to a year, who has done half in custody and who has another six months under licence or restriction? What is the nature of the programmes in which they would be involved with criminal justice social workers?
Again, it depends on the nature of the offence for which they were convicted. It will be a combination of reporting requirements to the supervising officer—in certain instances, the supervising officer will be undertaking home visits to the offender—and consideration of the circumstances of the offender, for example the extent to which they may need to undertake other work. It could be work in relation to their offending behaviour; for example, we are at the early stages of rolling out an accredited general offending programme. It would be a 26-week programme, in which various aspects of the offending behaviour would be considered with the offender. It could be plugging into Alcoholics Anonymous groups or it could be treatment services and so on. Basically, it will be informed by the risk assessment.
At the other end of the scale, so to speak, the bill proposes that those offenders who are sentenced to fewer than 15 days will spend their entire sentence in custody. What consideration has been given to the impact on those offenders, considering that early release is to do with managing them in prison and encouraging them not to reoffend? Has there been any examination of the impact of the fact that that has been taken away and that those offenders will face the whole 15 days in custody?
It is fair to say that the number of individuals who get a sentence of fewer than 15 days is small. They tend to be fine defaulters, who have gone through all the alternatives available to the court, such as helping the individual to pay the fine or giving them a supervised attendance order. My colleague will correct me if I have gone off script here—
We like it when you go off script.
Supervised attendance orders in respect of fine defaulters have been available nationally since 1998. They offer an alternative to courts to the custody approach. We are piloting provisions in Glasgow district court and Ayr sheriff court whereby those prescribed courts which would otherwise have the option of custody for those who are fine defaulting on less than £500, do not have the ability to sentence such fine defaulters to custody and have a mandatory requirement to make use of SAOs. That does not mean to say that those fine defaulters may not ultimately end up in custody; for example, if they have breached the SAO, the court, in dealing with that breach, may decide on custody. However, certainly at the first cut, it avoids custody for those fine defaulters.
It is curious that someone who has been sentenced to 14 days will serve 14 days but that someone who has been sentenced to 21 days will serve 10 or 11 days. If a judge ever sentences me to 14 days, I must remember to ask him for an extra week.
I do not think that Mr Fox is seeking legal representation at this stage.
I want to ask specifically whether you have carried out any gender analysis of the proposal, as I am genuinely worried about the disproportionate impact that we know there is on women and their families when women default on fines. Have you considered that? Have you done any research into how often supervised attendance orders are used and in what context? I think that the proposal will have unintended consequences.
We have not conducted research in the context of the bill, but we have examined carefully the role and position of supervised attendance orders. In addition to the pilot schemes in Glasgow district court and in Ayr sheriff court, we are running separate pilot schemes in Dumbarton and Paisley, which provide the courts with the option of using supervised attendance orders as a disposal of first instance. That is to say, when one of those courts is disposed to impose a fine but believes that the offender does not have the means to pay, the court has the option of imposing a supervised attendance order in the first instance instead of imposing a fine and going through the business of the person defaulting.
I take it that, although there is work in progress, no specific gender analysis of the proposal has been carried out.
That is correct.
When we gave evidence on the Criminal Proceedings etc (Reform) (Scotland) Bill about the fine enforcement officers that are being introduced, the Justice 1 Committee asked us the same question. I sent a written response a few months ago, which we can dig out. We found that having fine enforcement officers was likely to have a beneficial impact on the number of women who are with us each day, but that at a couple per year the figure was not large enough to be statistically significant. I do not know whether that helps. We would be happy to make that answer available in writing as well.
I have two brief questions. The first is of a more general nature. Paragraph 163 of the explanatory notes to the bill states:
Yes. Paragraph 163 refers to a minimum period of three months' supervision for it to have any effective impact. Those who serve sentences of six months or less will, of course, still be subject to licence, and the licence will be fairly minimal, stating that they shall be of good behaviour. That is not to say that such individuals may not be plugged into services if that is achievable, but they will not be subject to the supervision requirements that apply to those who serve sentences of more than six months.
So it is fair to say that there will be no meaningful impact for more than 50 per cent of the record prison population—which, with the bill, will top 9,000.
As I said, attempts will be made to get those who are serving sentences of less than six months into services. The issue is the extent to which supervision, as offered by local authority criminal justice social work departments, will be possible and effective during that period.
The bill states that Scottish ministers—I understand that, in practice, it will be the Scottish Prison Service—and local authorities must establish arrangements for the assessment of prisoners. That will apply whether or not the inmate comes from the local authority area or intends to go to there. They might not indicate that they intend to go there, but that is a matter to be discussed further down the line; the local authority must be involved in the assessment. However, the financial memorandum does not seem to mention the costs of local authorities taking part in that. It seems to mention only SPS costs.
An extra £500,000 per year will be added for the social work input to increased integrated case management. The cost is currently £5 million to £6 million, so the new total will be £5.5 million to £6.5 million. That is covered in paragraph 158 of the financial memorandum.
So that is included. It looked as if the Scottish Prison Service was saying that its additional costs would be £5 million to £6 million, but the bill says that the risk assessment is joint and the cost to local authorities will be about a tenth of that. I thought that the split would probably be 50:50, but perhaps you can come back to us with a bit more detail.
Perhaps the panel could send us a note on that.
On the non-recurring capital costs, the financial memorandum mentions "the new prison/s". Can we have a bit more detail on the forecast? Obviously, we are talking about a new prison, but the phrase "the new prison/s" is slightly broader. Surely there must be a bit more detail on how many more prisons we will need in Scotland to lock up our record number of people.
At the moment, we have an assessment of the number of additional prisoners per night whom we expect to be in our care as a result of the measures in the bill. In addition, the projections are increasing in any case. Some 700 to 1,100 additional prisoner places will be required, but that does not necessarily translate into the number of prisons. I am not trying to avoid your question, but there are different ways of providing accommodation. Sometimes it comes in chunks of a few hundred places in house blocks.
So, at this stage, the financial memorandum can only be extremely broad.
It gives the most precise estimates that we can produce, given the number of underlying assumptions that we have to make.
We will leave it there. As I said earlier, if anyone on the panel wishes to send us more information on the issues that arose today, they are welcome to do so. Similarly, if members have further questions, they can submit them to the clerk, who will write for further clarification on behalf of the committee.
I am here to talk about part 3 of the bill, which deals with weapons and provides for restrictions on the sale and availability of swords and non-domestic knives. The objective of part 3 is to put in place safeguards to help to prevent such potentially dangerous weapons from falling into the wrong hands. The provisions form part of the Executive's reform of knife-crime law and are a vital component of the wider package of measures to tackle not only knife crime but violence more generally. I should emphasise that they are not the only component, although they are the only one that is dealt with in the bill.
Thank you for that. I ask members to be as tight with their questioning as possible, and I will try to demonstrate how to do that.
Ultimately, the definition will be a matter for the courts, but the bill says that a licence will be needed except for knives that are designed for a domestic purpose. Cutlery and DIY products are clearly designed for a domestic purpose, but if retailers are in doubt, we could offer guidance. The same approach was taken in the Police, Public Order and Criminal Justice (Scotland) Act 2006, under which the age of sale was increased to 18 for such items other than domestic knives but remains at 16 for domestic knives so that young people or couples setting up house can still obtain DIY products or sets of cutlery.
I am not aware that stores challenge someone who buys a bread knife, for example, but will that become an obligation?
If a retailer sells only bread knives, it will not need a licence. If it sells a wider range of products, it will be required to satisfy itself that they are only for domestic purposes, and if that is so, it will not need a licence. If the retailer is uncertain or thinks that the products are for purposes other than domestic, it will require a licence. Guidance will be issued through the licensing scheme, and as trading standards officers become experienced in the scheme, local authorities will no doubt be able to give retailers a view on whether they need to be licensed.
It sounded from what you said a moment ago that the courts will define. That is usually a bit too late, as people will want to know in advance whether they need a licence. Is there any intention in the Scottish Executive Justice Department to define more clearly exactly what a domestic knife is? If you need to write to us on that question, that is fine, but I have seen blades from hunting knives that, with a different handle, would look exactly the same as those used in domestic situations—some butchery knives for example. Is there a move to have a clearer definition?
The definition that we are proposing and that Parliament will vote on is the one in the bill. We can provide guidance to supplement that definition, but the law will be the wording in the bill. Therefore, ultimately it will be a matter for the courts. However, it will be down to individuals to exercise common sense on whether something is for use around the home.
I was there.
There was a clear distinction between the domestic knives and the ones that were not designed for domestic purposes. It is that categorisation that we are attempting to capture in the legislation.
It was as a result of that demonstration that I wanted to ask you about screwdrivers. We were told that a large Phillips screwdriver was a favoured weapon. I note what you said about under-16s not being allowed to be sold domestic knives. Will that provision in any way prevent under-16s from being sold such screwdrivers?
The licensing scheme will cover knives, knife blades and any other sharp, pointed objects that are designed to injure people. It will not cover screwdrivers as such. I would take issue with some of the information that was provided in the demonstration. It gave the strong impression that a number of crimes are committed with normal domestic knives, screwdrivers and so on. As I have said, the statistics from Strathclyde on stabbing attacks show that of 1,300 incidents, 1,100 were in a public place and committed with a non-domestic knife. Of the other 200, I am not sure how many were committed in a domestic situation where we would expect it to be more likely that a domestic knife would be used. In the vast majority of cases, the problem is caused by the type of knives that we are seeking to regulate.
Thank you—that is helpful.
You mentioned that a business selling to a business will be exempt and that a business selling to a profession—first, you used the word "professional" but changed it to "profession"—will be exempt. Will you clarify what you meant by a business selling to a profession?
The example I would give is a company selling medical knives—scalpels—to hospitals. Such a company will be exempt from the legislation; that will also be the case if the company is selling to individual surgeons who have a professional need for such knives. If, however, such a company were to make a habit of selling medical knives to the general public—to someone coming in off the street—it would require to be licensed. The objective of the legislation is to regulate when we feel we have to, but to try to avoid regulating when we think that there is no need. We consider that there is no need to regulate businesses selling to businesses or to professions who may have a use for such knives.
I accept that, and I agree with you on the business-to-business aspect; I was just trying to clarify what you meant when you said "profession". You gave a good example. What if somebody was a butcher—would that be defined as a profession? Boning knives are a lethal weapon, but they are a legitimate part of a butcher's profession.
I shall ask one of my legal colleagues for their view on that.
If a butcher was seeking to purchase a knife for use in their shop, they would be acting in the course of their business or profession, so the seller would not require a licence.
So butcher-supplies companies would be exempt, even though any member of the public could walk in—
No. They would not be exempt if there was any prospect of them selling those butchers' knives to persons other than butchers. If they were possibly going to be selling them to private individuals, they would require a licence. They would have to be clear that they were selling knives only to persons who were acting in the course of their business or profession.
So it would be their responsibility to identify whether the individual was a bona fide butcher.
Yes.
It is more a question of businesses that operate as suppliers to the trade not needing a licence. Businesses that do that but which also open their doors to the general public—or advertise to the general public—will require a licence.
Perhaps I misheard you, but you said that sports would be exempt. Is that correct?
Exemptions would be made for sporting purposes.
Would that include fishing knives?
No. I referred specifically to fencing and martial arts organised on a normal basis.
I know that you specifically said that, but most of us would define fishing as a leisure pursuit or a sport.
The exemptions that I was talking about related to the prohibition on the sale of swords.
Fishing knives would not be exempt.
They are not covered by the ban on the sale of swords. We are licensing sellers of knives that are not intended for use at home. Fishing knives are not intended for use at home, so people or businesses selling those knives would require a licence.
In other words, somebody who was carrying a shotgun would have to have their licence on them and the situation would be the same for a ghillie or for someone who does a lot of offshore fishing, for example for large coarse fish, and who would come and go carrying one of those knives.
We have moved to a separate issue. We are talking about licensing the sellers rather than the carriers. There is a distinction between those approaches.
You gave figures for offences that are committed with non-domestic knives. Is there any evidence, or has any research indicated, that the bill might lead to people purchasing a domestic knife or implement and using it as an alternative to whatever it is that they use and commit crime with now?
That is perhaps a risk, but we are attempting to deal with the risk that we know exists. As I said, non-domestic knives were used in 1,100 out of 1,300 attacks. Those knives tend to be folding or locking knives. Someone can slip a folded knife in their pocket and there is no chance of them stabbing themselves, but when the knife is open and locked, there is no risk—unlike a penknife—that it might bend when they try to use it forcibly so they are sure of injuring the other person. Such knives and the much larger combat-style knives are what we are dealing with in the bill.
COSLA's submission suggests that anyone who really wants to buy a knife will always find a way round any licensing restrictions. What consideration has been given to the possibility that the proposals in the bill will lead to more illicit trading in knives or that people will get knives from abroad via the internet or magazines?
On the suggestion that people who want a knife will always be able to get one, we are attempting to regulate the sale of knives through imposing licence conditions rather than to stop it absolutely. I do not think that what we are doing will lead to the development of a black market in knives. If people operate as knife sellers without a licence, the proposals in the bill will ensure that by doing so they are committing a criminal offence and can be arrested for it. Currently, if the police come across people selling knives in what could be regarded as an irresponsible manner, there is nothing that they can do about it. In the future, the police will be able to check that the person has a licence and if they do not they will be subject to penalties through the courts.
I take that point, which is interesting. You mentioned that 1,100 of the 1,300 attacks in Strathclyde were carried out with non-domestic knives. Do you have an idea of where those 1,100 knives were purchased? How many of them were obtained via sales internationally or might, following the application of the provisions in the bill, still find their way to offenders?
I do not know the origin of the 1,100 knives because such information is not part of the data, but I assume that most of them were bought in Scotland.
Given that 200 attacks were carried out using domestic knives, would it be fair to say that you hope that the bill will address the 1,100 non-domestic knives that were used in the assaults that you mentioned?
The bill will certainly do something about the sale of those knives. We know that the 200 other attacks did not occur in a public place. A number of assaults might have taken place in non-public places with non-domestic knives, so the number of assaults carried out with non-domestic knives might be more than 1,100.
The licence conditions are fairly strict. A number of responses to the committee, particularly from retailers, flagged up concerns about conditions such as requiring a retailer to keep records of everybody that it sells a knife to and to obtain photographic evidence of every purchaser's identity. Retailers have asked us whether the Executive has thought about putting restrictions on the sale of knives without licensing conditions, such as not allowing them to advertise either in their windows or at all. In other words, could restrictions have been levied without a strict licensing scheme such as that which is in the bill?
That was certainly considered, because questions about the licence conditions were covered in the consultation. I accept that retailers objected to the conditions as making them do something more than they do at present, but a number of other consultation respondents supported the conditions strongly and suggested that we go further. Restricting display is intended to be one licence condition that will be imposed.
So your view is that the licensing scheme in the bill will bring a number of advantages that can be achieved only through such a scheme.
Yes, it means that the provisions apply to businesses that deal in the items.
I want briefly to follow Colin Fox's point about buying knives on, for example, the internet. International purchases had not really crossed my mind, but there seems to be a large trade in knives through magazines and mail order. Many companies are not based in Scotland—they may be based elsewhere in the UK or perhaps even Ireland. Did you consider any ways of trying to tackle the problem of supply through mail order or magazines? A lot of so-called hunting and pseudo-military magazines sell the items.
I will start with your second point on the offences on individuals. Ministers have decided to adopt an approach that concerns restrictions on sale rather than purchase. However, individuals purchasing a sword or knife who knowingly provide the seller with false information would commit an offence, so there would be a penalty for someone not having a legitimate purpose for buying a sword.
I want to ask just one question, although I have probably not noticed the answer when reading through the bill. What would be the grounds for a local authority to refuse a licence? Are they the same as under the 1982 act for window cleaners?
Indeed they are, and perhaps that is why they are not obvious when reading through. The provisions on knife licensing build on the provisions in the 1982 act that deal with the application procedure for a licence and the local authority consideration of it. The provisions include phrases such as "fit and proper person". Do you want me to go into more detail about that?
No, if the grounds are identical to those in the 1982 act under which a local authority can refuse a licence for a window cleaner, I am familiar with them.
Mr McLaughlin reminded us that those who sell swords on a commercial basis will be required to take steps to confirm that a person who wishes to purchase a sword wants to do so for a legitimate purpose. How will that work in practice?
The general sale of swords will be banned—it will be an offence to sell a sword, other than for the accepted legitimate purposes that I set out. Sellers will be asked to get confirmation that the sword will be used for one of the legitimate purposes. For commercial sellers, the measure will be reinforced through the licensing scheme. The licensing conditions will require sellers to take details of the intended use and to take down the information that was given that convinced them of the intended use. That might be a membership card from a society or a letter from a Scottish country dancing teacher. The licensing scheme will reinforce the requirement for commercial sellers. Individual sellers will be subject to the same requirement, although not to the licensing scheme. We imagine that most individuals will sell to people whom they know and who are part of the same club or society or to people who respond to an advert in a specialist magazine.
You mentioned that a buyer might provide a letter from a dance teacher or a club membership card. Nowadays, it is easy to produce letters and membership cards on computers. Will individuals be required to provide some form of identification?
Sellers will be required to take down identifying details of individuals to whom swords are sold. Although you did not say so, the point that lies behind your question is that people may provide wrong information. That is why it will be an offence to do so. We cannot reasonably expect sellers to conduct extensive background checks on individuals every time that they make a sale. However, we can ensure that, if the police find someone who has a sword and who seems to have had no good reason for buying it, the person would be guilty of the offence of acquiring the sword in that way and, presumably, of using it in the wrong way.
Did you consider introducing a requirement for people who want to purchase a sword for a legitimate reason to provide photographic identification?
Photographic identification may be required. Paragraph 114 of the policy memorandum states that the conditions that are set by ministers will require retailers
Would it not be sensible for the Scottish Executive to add that condition to give uniformity of process throughout local authorities, rather than leave the matter up to each local authority?
I understand your point, but in striking a balance between what should be set centrally and what should be set locally, ministers decided that that matter will be set locally. However, the ministers have said that they will review the provisions in the light of experience of the operation of the licensing scheme, so, in due course, photographic ID may become a central requirement.
I was interested in the suggestion that people might need to prove membership of a society by showing a membership card. How would that work? How would the retailer determine whether a society or organisation was legitimate? Will there be a list of approved organisations? Could I set up an organisation called the west of Scotland sword appreciation society and allow all my pals to be members of it? Would that be legitimate? Will such organisations need to be approved?
The idea of requiring specific organisations to be authorised was one option on which we consulted. However, ministers have decided not to go down that route, so we are not proceeding with that option.
How would the retailer know whether the membership card that I presented was legitimate?
That comes back to the issue of what we can reasonably expect retailers to do. That is why it is an offence for someone to give false information.
However, if I set up such a society along with six pals, the information that I gave would not be false. It would be true.
It depends on what the society is, what its objectives are and whether they fall within one of the legitimate exceptions. For example, a fencing society would come within one of the legitimate exceptions. Presumably, the person would explain that to the retailer. Specialist retailers have a general knowledge of the background to their activities. Although a retailer might not be able to spot a particularly good forgery or misinformation, a person who turned up with a rather less believable story than that of an MSP with a membership card might be turned away.
Stewart Maxwell's stories are always unbelievable.
I have a final small question. There is a trade and export market that sells Scottish replica swords and weapons to tourists and collectors. How will that trade be affected?
Our intention is that exports would be an exception. It would be unreasonable to require tourists who happen to be in the country to provide the membership evidence that we have discussed. Therefore, swords that are for immediate export would fall within one of the exceptions to the general ban on the sale of swords. However, such sales would continue to be covered by the licensing scheme.
How dangerous are the swords that are used for Scottish highland dancing and re-enactments? Surely they cannot be too sharp, given that dancers will not want to get their feet cut. What swords are we talking about here?
You are right that Scottish country dancing swords are probably the least dangerous. Re-enactment swords also tend to be blunt, although that is not always the case. However, such swords can be sharpened.
Okay, that is fair enough.
I thank the panel very much. As I mentioned to the previous panel, if after reviewing what has been said this afternoon the witnesses want to make additional points, they can send those to the clerks and we will be happy to consider them.
Meeting continued in private until 18:20.