Rehabilitation of Offenders
The next item of business is a debate on motion S4M-07867, in the name of Kenny MacAskill, on the rehabilitation of offenders.
14:19
The Rehabilitation of Offenders Act 1974 governs the responsibilities of, and protections given to, ex-offenders in terms of advising people of their previous criminal activity. The legislation has been on the statute book for almost 40 years. Much has changed over the past 40 years and I believe that it is right to consider whether the legislation is still fit for purpose for modern-day Scotland.
The rules governing how a person’s previous criminal activity is disclosed, by individual ex-offenders themselves and through information held on central records, need to succeed in achieving the right balance between, on the one hand, protecting the public from those whose offending behaviour makes them a potential future risk, and, on the other hand, enabling offenders who want the chance of gainful employment or education to put their previous offending behaviour behind them and to make a positive contribution to Scottish society. The rules also need to be easy to understand for all those who are affected by them, including ex-offenders, employers and others. The Scottish Government therefore published a discussion paper in late August seeking views on this important area to test whether the legislation still meets those aims.
Before the 1974 act was brought in, no protection was given to ex-offenders. That meant that someone who had committed a criminal offence, however minor and however long ago, had a responsibility to tell people about their old offending. The view taken by the then United Kingdom Government and by subsequent UK Governments and Scottish Governments was that giving no protection whatsoever to ex-offenders was not a proportionate approach to enabling and encouraging individuals to move on from their offending behaviour. Instead, the view was taken that a balance needs to be struck between allowing an ex-offender to move on and ensuring that the wider rights of society are protected in terms of public safety.
That is why the 1974 act was developed. At its heart, the 1974 act has a very simple concept: where someone has previously committed some criminal activity and has not re-offended, they should be given the opportunity of a clean slate as part of living their everyday lives. Therefore, the 1974 act introduced the concept in law of a “rehabilitated person”. Under the terms of the 1974 act, where a person has been convicted of a criminal offence and has been sentenced to prison for less than two and a half years, they can be regarded as rehabilitated after a specified period as laid out in the act, provided that they receive no further convictions.
A person can also become rehabilitated if they receive an alternative to prosecution, such as a fiscal warning or fiscal fine. The specified period during which a person becomes rehabilitated is different depending on the disposal received. For example, the rehabilitation period for a court imposed fine is five years, and the rehabilitation period for a fiscal fine is three months. After the specified period, the original conviction or alternative to prosecution is considered to be spent.
The general rule is that, once a conviction or alternative to prosecution is spent, a person does not have to reveal it and cannot be prejudiced by it. That means that if a rehabilitated person is asked on a job application form or at a job interview about their previous criminal activity, they do not have to reveal it or admit its existence. Moreover, an employer cannot refuse to employ and cannot dismiss someone because of previous criminal activity that is spent.
There are of course some exceptions to the general rules, given the wide range of sensitive work roles that exist within our communities, where public safety is and has to be paramount. Those exceptions and exclusions operate so that an ex-offender will have to reveal their previous criminal activity even if they would normally be deemed to be a rehabilitated person.
Secondary legislation under the 1974 act provides that, for example, a person must reveal spent convictions when they apply for licences under the Private Security Industry Act 2001, as must a person who wants to become a taxi driver. In addition, the normal rules about rehabilitated persons do not apply to work in parts of the financial sector, childcare, care services and the health professions. Those exceptions operate alongside the very specific protection of vulnerable groups legislation that the Parliament passed back in 2007. In bringing forward the debate, I want to be clear with everybody that there is absolutely no intention to weaken in any way the necessary protections that are in place for vulnerable groups.
So why should we have the debate? In our discussion paper, we highlighted that more than one in three of the adult male population in Scotland and almost one in 10 of the adult female population in Scotland are likely to have at least one criminal conviction. The legislation can and does affect many people in our society. Having a past in which there has been criminal activity can have an on-going, real-life impact on a person’s ability to gain employment, secure an apprenticeship, attend university or college, volunteer, or even get insurance or open a bank account. Evidence shows that employment, education and engaging in normal aspects of life are the factors that can most assist people to avoid reoffending and therefore reduce the harm to wider society.
Earlier this year, the Parliament’s Justice Committee reported on the importance of purposeful activity for offenders in prison to help them in their rehabilitation. Purposeful activity is also vital for ex-offenders in communities. In many instances, the same factors that apply in the prison estate apply outwith it. The factors of access to employment, education and engaging in normal aspects of life, which can be taken away and be no longer open, will have an effect not only on the rehabilitation of those who are required to do a prison sentence but on the opportunities, if any, that will be available to many who have committed an offence and have perhaps shown remorse and that they are rehabilitated and wish to get on with their life.
I very much empathise with what the cabinet secretary is saying, but in the modern world, many employers look at information in social media and on the internet generally as part of their recruitment process, and by that mechanism they may become aware of spent convictions that they might not otherwise have been aware of. I wonder whether that adversely affects people’s ability to gain meaningful employment. Has the Government identified any actions that it might be able to take in response to that risk?
The member makes a fair point. Whether we are talking about new legislation or existing legislation, a lot of this has been open to misunderstanding. For example, some employers think that it is mandatory not to employ ex-offenders, in contrast with what is said in the Rehabilitation of Offenders Act 1974, which was, I think supported across the parliamentary chambers. The purpose of the 1974 act is simply to ensure that information is available. As well as any legislative change that we embark on, we have to change attitudes to ensure that those who are charged with selecting volunteers or, indeed, candidates for employment, realise that this is about awareness and information. In terms of protecting vulnerable groups, there are mandatory exceptions that must be dealt with; in relation to other matters, it is for those people to decide whether they think that the individual is rehabilitated—notwithstanding any disclosures—and is capable of doing whatever work it is they seek to do, as opposed to taking a view that there is a red line and that they cannot even consider that individual, no matter the nature of the work.
Views expressed over many years suggest that the regime established by the 1974 act is complicated and therefore the evidence is that it is poorly understood. As a result, it is not properly applied in practice, and that can be one of the main barriers to ex-offenders gaining employment. During informal discussions with stakeholders, it has been suggested that the current rehabilitation periods are not appropriate and do not reflect the point at which re-offending tails off following previous criminal activity, and that they are out of date and do not reflect sentencing practice in Scotland.
Few have suggested that the fundamental principles of the legislation—helping offenders put their past behind them while protecting the public—are not still as relevant today as they were in the 1970s. There is, however, no single view on how best the 1974 act should be reformed and in particular how rehabilitation periods might be revised.
The Scottish Government does not hold a fixed view about how the regime might be modernised and reformed. Our discussion paper is designed to stimulate debate. For example, we want to hear views about whether five years is the correct rehabilitation period for someone who receives a court imposed fine. There is an argument that when someone is fined, the court has taken the view that they do not need to be imprisoned for the purpose of protecting the public. In that case, what is the correct period for disclosure of their court imposed fine?
Is it right that someone who receives a sentence of above 30 months in prison will never become a rehabilitated person? Under the current regime a person in their early 20s who commits a serious enough offence to receive a three-year prison sentence and who serves their sentence will have to tell people about that offence for the rest of their life, regardless of their subsequent behaviour.
The responses to our discussion paper will help to provide us with evidence and views so that we can find Scottish solutions to the various issues. Along with considering the views expressed in response to the discussion paper and the views expressed in today’s debate, we also plan to hold a series of stakeholder events across the country over the next few weeks so that we can obtain views specifically from ex-offenders and employers. Those are the two groups most affected by the legislation and we want to hear what they have to say.
The legislation has a role to play in protecting our children and the most vulnerable in our society. It also has a role to play in helping to reduce re-offending by assisting those ex-offenders who want to move away from their previous criminal activity, lead purposeful lives and contribute to wider Scottish society and the Scottish economy.
It is important that we try to develop reforms that are built on a broad consensus of stakeholders, employers, individuals such as ex-offenders and the parties in the chamber on what type of reform is required. The issues are too important and affect too many people. We must work together to find the right solutions. We have recently announced a 14-year low in re-conviction rates. That was good news.
Although a range of activities and approaches affect re-offending, the way in which the 1974 act operates also has a part to play. Any reforms must deliver the correct balance between reducing re-offending, keeping our communities safe, increasing public confidence, strengthening community resilience and achieving sustainable economic growth.
I move,
That the Parliament agrees that the time is right to consider whether the Rehabilitation of Offenders Act 1974 needs to be modernised and reformed; notes that the legislation has a dual role of protecting the public and helping to reduce reoffending; agrees that helping ex-offenders move away from their previous offending behaviour in order to lead purposeful lives can help contribute to wider society in Scotland; notes that any reform must deliver the correct balance between public safety and rehabilitation, and agrees that it is important to develop policy, through a broad consensus, on how to reform and modernise the rules governing how a person’s previous criminal activity is disclosed after a sentence has been served.
14:34
I am grateful to the cabinet secretary for bringing the motion to the Parliament because the debate allows us to address a very significant issue in the criminal process in Scotland and our ability to rehabilitate those who commit crime in our communities. The cabinet secretary is in unfamiliar territory today, because my approach does not differ much from his on the need to review the 1974 act.
There is no doubt that it is very important that people are able to put their criminal past behind them. Equally, the cabinet secretary must acknowledge that the issue is a contentious one in the broader public view. People who might employ someone who has convictions have a responsibility not solely to their other employees but to the businesses that they run and the services that they provide. They also have a responsibility to the customers who access those businesses and services. That is the nub of the challenge that we will face in any review of the 1974 act.
The cabinet secretary quite properly acknowledges that one in three males and one in 10 females are likely to have a conviction of some sort. It is difficult to identify a conviction as having been spent. The creation of Disclosure Scotland and the notion of enhanced disclosures have also made knowing where the balance might lie a technically difficult issue. It is difficult for any legislature to measure the ability of bureaucracy to acknowledge and properly apportion risk in relation to each individual employment opportunity.
From my point of view, the aspect that the cabinet secretary has focused on today—the legislation—is probably only a small part of how one might rehabilitate offenders. The purpose of prison is to punish offenders, to incapacitate offenders and protect the public, to deter potential offenders and to rehabilitate.
Unfortunately, in “Reducing Reoffending in Scotland”, Audit Scotland’s analysis of the current problem seems to indicate that in terms of effectiveness and efficiency, our prisons just are not doing that. Thirty per cent of convicted offenders in 2009-10 were reconvicted within a year. Although that gives us no indication of how often those people had offended, they were certainly reconvicted within a year—and the percentage rises to nearly 40 per cent within two years. In 2010-11, the Scottish Prison Service and others provided reducing reoffending services at a cost to the public purse of £128 million. The Prison Service spent an additional £419 million dealing with convicted prisoners.
In our prison estate, there are 9,500 prisoners who have been convicted on at least 10 occasions—many have been convicted much more than 10 times. We are talking about an on-going crime wave, year on year.
I seek a little clarity. I take it that the member was not implying that the 9,500 prisoners who have offended 10 or more times are all in prison at the same time, given that our prisons do not hold that number.
The member is quite correct and I am grateful to him for raising that point of clarification. No, the 9,500 are not all in prison at the one time, although I am sure that some members of the public wish that they were.
It is important to note that 1,308 separate services for offenders are currently provided in Scotland. I am concerned about how victims and witnesses view that provision. Our prisons need to concentrate on purposeful activity, but HM prisons inspectorate for Scotland and Audit Scotland have noted that purposeful activity is somewhat wanting in our prisons.
Does the member acknowledge that such a blanket comment is a bit erroneous? As he will be aware, during the Justice Committee’s inquiry into purposeful activity in prisons, we learned, for example, that only three of the 24 women who had been through the Inverness prison women’s unit had reoffended.
Again, I am grateful to the member. He has saved me from saying something that I was going to say later. It is true that there are examples of good practice, and we need to see such examples of what works across the whole prison estate.
In his final report, Brigadier Hugh Munro reported that in Polmont prison, for example, some young offenders are still in their beds in the afternoon. Watching day-time television is not, in his view, a substitute for purposeful activity.
We know what the problems are before we get to the stage of deciding whether to disclose previous convictions. The problems are a lack of numeracy, a lack of literacy, an inability to deal with alcohol and drug abuse, and mental illness among some prisoners. We need to look at rehabilitation in the round. Important as it is to know when we should disclose convictions and how disclosure should be managed, it is not just about that. How do we enable those men and women who are being churned repeatedly through the prison system without any purpose or future and with little hope?
The member has not referred to mentoring so far. Does he have any comment to make on the importance of mentoring?
I am grateful to the member—I hope that I will come on to that point as I go through my speech.
Prisoners often face problems when they return to the community, and not only in relation to facing up to their convictions. Quite often, they face simple problems. Will the authorities provide them with a home—with somewhere to stay of an evening—the day after they are released from prison, for example? How do prisoners access and retain their family relationships while they are in custody? Who prepares them for a job experience while they are incarcerated? Giving prisoners the opportunity to learn skills in prisons, to be taught what a working day is, and to face up to the responsibilities that they need to face up to is an important lead-in to the use of legislation on the disclosure of previous convictions.
The other point that the cabinet secretary needs to acknowledge—I hope that he will when he closes the debate—is the need for strong leadership, which is highlighted on page 34 of the Audit Scotland report. The report says:
“Stronger leadership is required if the level of reoffending is to be significantly reduced.”
That leadership needs to come primarily from the cabinet secretary’s office and go both to those who lead the various services that are designed to help prisoners in terms of reoffending and to those within the wider criminal justice community.
The difficulty that we face is that the Government’s own statistics show growth in the number of prisoners, which will have to be managed. It is anticipated that the prison population will rise to 9,500 during the next four to five years. That is a tragedy for the prisoners themselves as well as being a tragedy for the victims whom they have left behind and for the families who rely on those men and women coming back to their communities in due course.
I acknowledge that mentoring is important, as are interconnected services that will provide for offenders as they return from prison. However, it is also important for the Government to acknowledge the difference between reconviction rates and reoffending rates. [Interruption.]
As we go forward, the cabinet secretary should ensure that he maintains a vision of the key issues, that the crime statistics fall and that the prisoners who go through our system are properly managed to give them the opportunity to address their offending and problems so that they become constructive members of our Scottish communities.
I invite all members to manage their mobile phones, please.
Margaret Mitchell has six minutes.
14:44
The motion, which the Scottish Conservatives are happy to support, agrees that it is now
“time ... to consider whether the Rehabilitation of Offenders Act 1974 needs to be modernised and”
perhaps even “reformed”. That important and complex act has a difficult balancing act to achieve in seeking, as it does, to accomplish its dual role: namely, on the one hand, protection of the public—in particular the most vulnerable people in our society—and on the other, seeking to reduce reoffending by acknowledging that people who commit crimes can change, be released from custody and contribute to society. A key to pulling off that balancing act is certainly meaningful and effective rehabilitation in the community but, crucially, that must be complemented by the same commitment to rehabilitation in prison.
Part of the consultation on the 1974 act should involve taking account of the findings of the Justice 1 Committee’s 2003 report “A Comparative Review of Alternatives to Custody: Lessons from Finland, Sweden and Western Australia” and the Justice 1 Committee’s 2005 report “Inquiry into the Effectiveness of Rehabilitation in Prisons”. Both those reports highlighted the lack of rehabilitation opportunities for people who serve short-term sentences but, as the committee heard from Dr Nancy Loucks, rehabilitation should be a priority for both short-term and long-term prisoners, with prisoners being given the opportunity and the motivation to continue rehabilitative work on release.
In addition, last year’s report by the commission on women offenders highlighted the lack of throughcare for prisoners who are serving less than four years because they are not the subject of statutory throughcare, which is where most resources are focused.
Some fantastic work is being undertaken in our prisons to help to rehabilitate offenders. Examples include the literacy programme for dyslexic offenders at Saughton prison, which is supported by Sir Jackie Stewart. However, unless we can provide meaningful support to those who serve short-term sentences, the prospects of achieving and maintaining effective rehabilitation in the community are greatly diminished.
In general terms, the 1974 act makes provision for offenders who have been successfully rehabilitated to wipe the slate clean, in effect. Those provisions are supported by all parties. However, the legislation has been criticised for being cumbersome and in need of modernisation in order that it can achieve the delicate but necessary balance to which I referred earlier.
Therefore the question is this: after nearly 40 years, does the act get the balance right between protecting the public and supporting rehabilitation of offenders? Here the Government’s consultation poses a number of interesting questions. For example, are some offences so serious that they should always be disclosed? In the limited time that is allotted to me, I want to concentrate on one aspect of that question. Crucially, one of the most important areas that requires further close examination is how sex offenders are dealt with on release under the 1974 act.
The conviction of Ian Huntley, who worked as a caretaker at a school in the village of Soham, Cambridgeshire, where the murders of Jessica Chapman and Holly Wells took place, prompted the setting up in December 2003 of the Bichard independent inquiry into child protection, record-keeping, vetting and information sharing between Humberside Police and Cambridgeshire Constabulary. That independent inquiry was set up because Huntley was able to work in a school despite a string of allegations of criminal activity having been made against him in the past, including some concerning sexual offences against children.
Recommendation 19 of the Bichard inquiry report, which was published in June 2004, stated:
“New arrangements should be introduced requiring those who wish to work with children, or vulnerable adults, to be registered.”
The Protection of Vulnerable Groups (Scotland) Act 2007 was the Scottish Government’s response to that recommendation. Under the PVG act, offenders who are subject to a notification requirement under part 2 of the Sexual Offences (Scotland) Act 2003—commonly referred to as the sex offenders register—are required to disclose that fact. However, given the concern about the potential consequences when sexual offenders breach the conditions that they are required to adhere to, I believe that offenders who breach the register conditions and go missing should lose the right to anonymity. Also worthy of consideration is whether, for some occupations and for some very serious cases, the convictions of sex offenders should never be deemed as spent.
In conclusion, I say that this is a vexing and pressing issue, which I call on the Scottish Government to ensure is thoroughly examined by all stakeholders. Although the Rehabilitation of Offenders Act 1974 is almost 40 years old, the principle behind it is still sound. I welcome today’s debate and encourage all those who work in the criminal justice system, together with employers and ex-offenders, to help to inform the process.
Before we move to the open debate, I draw members’ attention to the fact that we have some time in hand today, so I encourage interventions and even imaginative debate.
14:51
Presiding Officer, I wish that you had not prefaced the debate in that way as I got to my feet. Why is it that I always get extra time when I have not got much to say, whereas when I have lots to say I get two minutes?
Let me say for a start that I want to grumble. I want to grumble to the Parliamentary Bureau—I have made this grumble before—about its scheduling of justice debates for Tuesday afternoons. The Justice Committee barely finished at 1.15 pm today, having had to strike from its agenda item 5, which was consideration of a draft report on the Tribunals (Scotland) Bill, so we are labouring. I know that Mr FitzPatrick has left the chamber—just as well—but we do not want justice debates on a Tuesday afternoon. We have had hardly a chance to look at the issue. I speak for myself, although I am sure that the other committee members are thoroughly engaged with that.
I am sure that Christine Grahame wants to finish grumbling soon and to be positive and constructive about the issue that we are debating.
Perhaps. We will see.
Actually, I am positive about the issue. Just because legislation—or, indeed, anything or anyone—is old, that does not necessarily make it bad or in need of reform. However, in the case of the 1974 act, it is fair to say that the legislation is past its sell-by date. I am with Graeme Pearson in being able to say that I agree with the cabinet secretary on the issue—someone must write that down in big print. However, I note that the formal consultation began barely one month ago, so I plead with the cabinet secretary not to land the Justice Committee with another bill, as we have plenty to go on with just now.
It is true that the 1974 act is complex. In my briefing for today’s debate, I was given a flow chart showing how it operates. It makes one dizzy, trying to follow all the various routes that show what should and should not be disclosed. If ordinary people are asked whether they have a previous conviction that should be disclosed, I do not know how they understand it. One in three men and one in 10 women have criminal convictions, but do they know when they should disclose them? By the way, I say to Jackson Carlaw, whom I saw checking that figure, that I am not one of those. In teaching, for example, which is a former profession of mine, all criminal convictions are required to be disclosed, even if the conviction was for a small breach of the peace at the age of 17.
Will Christine Grahame give way?
Does Jackson Carlaw want to confess?
Actually, when the cabinet secretary revealed the figure, I was checking not my records but the number of colleagues beside her on the back benches. I was seeking to speculate which of them were guilty.
Ah. How kind.
In any event, we have even changed our views of what is and is not a criminal. To take a simple example, the lad who is convicted of a knife crime was only a knife stroke away from being the victim and, similarly, the victim was only a knife stroke away from being the person who was convicted. We understand the complexities of how people get into a life of crime. That is not going soft on crime; it is understanding that it is a complex matter. I am glad to say that we have got away—or at least some of us have—from wanting an eye for an eye and a tooth for a tooth.
We need to look carefully at injustices. For example, as the cabinet secretary said, a person who has had a sentence of more than 30 months has no escape and has to declare it. I do not understand why. However, it is essential that we protect the public at large, and some sections of the public require specific protections; we require specific protections in relation to people who work with children, in healthcare, in licensing and in some other trades. The system has to be fairly subtle.
We have to get the balance right and we have to take the public with us, because the public do not want to hear that people who have committed crime are coming out of prison and, within a short time, are scot free and do not have to declare it. We have to take the public with us, as well as the stakeholders—to use that awful expression.
Those are the technicalities. On the pragmatic side, I want to mention one issue that has already been referred to. I fear that there will be a lot of repetition in this debate, Presiding Officer, so fasten your seatbelt. The Justice Committee has examined purposeful activity in our prisons. With Alison McInnes, I went to the young offenders institution at Polmont, where provision of purposeful activity is patchy, although to give the institution its due, I say that things are moving and changing. I think, however, that the effort to provide education for some young offenders is very poor indeed, because it involves their sitting at a desk for two hours. We do not make people in second year or even fifth year at secondary school sit at a desk for two hours, so we certainly will not get a young lad or lassie who is alienated and has separated themselves from society doing it. There must be more creative ways to get people to improve their literacy and numeracy. That is a big issue in our prisons.
As my colleagues do, I have huge regard for the new chief executive of the Scottish Prison Service, Colin McConnell. He is a reformer and he is going to get some brickbats, because he says things that people do not like to hear. For example, when he talked about access to telephones—my goodness! One would think that he was going to let prisoners have a free for all and speak on the phone willy-nilly. What he was trying to say—he does not need me to say this, but I will—is that we need to normalise people. We should make them realise that they are in for punishment, but we try to normalise their lives, keep them connected with their families and communities and get them to do normal activities so that, when they come out, they are not totally alienated.
By the way, the process must continue when people come out. The education process, the normalising and the attempt to rehabilitate must cross over. I think that one of the Justice Committee’s witnesses talked about the prison walls being “permeable”. In other words, there is not a solid wall. People should come through and get their throughcare and support throughout.
Graeme Pearson is right that some of the things that we need to do are simple. It is about having somebody at the prison gates—not a bad guy, but a good guy—who can provide somewhere to stay for the night. In Cornton Vale, when some women are released, there is somebody there with a taxi from the 218 centre in Glasgow saying, “I’ll take you to this place now.” The person is supported immediately. Those are simple things, but the opportunity can be lost within 24 hours of a person’s being discharged.
Although the consultation is excellent, we have to look at the whole package and at what is happening in our prisons—we cannot take our eye off that proverbial ball. In a way, one of the more important things is to take the public with us so that they understand that, when we are looking at rehabilitation and perhaps at changing the way in which people have to declare previous convictions, we are not going soft, but are instead being honest.
14:58
As members know, the rehabilitation of offenders and the impact on the family is an issue that I have raised repeatedly and will continue to raise. It is right that we should modernise rehabilitation in our prisons for the benefit of offenders and their victims. In April this year, the SPS chief executive, Colin McConnell, said at the offender management conference:
“for and on behalf of the victims of crime, there can be no more powerful justification for tackling re-offending and supporting re-integration, than doing so in their name and to try as best we can through the intelligent work we have yet to do, to ensure that there are far fewer victims in future.”
Mr McConnell is right, as long as we remember that the families and children of offenders are victims, too.
In taking into account the barriers to reducing reoffending, support for the family remains a major concern. There are many issues that affect families, one of which is the loss of family income, which often leads to changes in the housing situation, which in turn has a detrimental impact on the behaviour and educational attainment of children. Research shows that supporting families as well as working with the offender helps to break the cycle of offending.
Before the summer recess, the Cabinet Secretary for Justice attended a meeting of the cross-party group on families affected by imprisonment. I thank him for attending that cross-party group. It was a valuable meeting, at which members of the group heard from Mr MacAskill and, in turn, had the chance to ask questions on supporting families to reduce reoffending, which remains our key goal.
With the changes in family units and in society in general since the introduction of the 1974 act, it is right—and overdue—that we seek to modernise the legislation. However, we must take into consideration the fact that there is no one-size-fits-all approach to tackling reoffending.
My members’ business debate in May placed a focus on the need for person-centred approaches to reducing reoffending. In opening the debate, I stated that all prisoners have assets and that we can, if we work with them to utilise those assets, tackle reoffending. When I say “asset”, I mean nothing financial or material; I mean assets ranging from education qualifications and work experience, to hobbies and interests to—of course—families and friends.
In modernising, we need take risks and come up with new ideas. As Einstein said, insanity is doing the same thing over and over again and expecting different results.
Earlier this year, I met a group of ex-offenders in Glasgow and heard how the many different agencies that are involved in tackling reoffending do not work well together in supporting newly released offenders. I also heard about how throughcare should start at the beginning of the sentence.
Another aspect of tackling reoffending and readying the person to be integrated into society is the provision of meaningful activity while they are in prison. Meaningful activity creates a sense of belonging in prisoners, as long as they can get involved in a work programme, training or an education course that reflects what they want to do on release and can see themselves benefiting from that.
One of the ex-offenders whom I met in Glasgow told me how they had worked in finance for many years but could be offered only an art class in prison. How is that meant to rehabilitate anyone from the cycle of reoffending? Instead, using the ideology of utilising prisoners’ assets, a prisoner with an accountancy skill could teach other prisoners, which would tackle the low level of numeracy in our prisons.
Rehabilitative programmes have their place in our prison estates, as long as they are well funded and achieve the outcomes that they are meant to achieve.
A freedom of information request shows that the SPS uses seven rehabilitation programmes. One, the female offending behaviour programme, has annual funding of almost £92,000 and offers 14 places, which means that the cost per prisoner place is £6,564. The substance-related offending behaviour programme has annual funding of almost £500,000 and has 173 places—a cost per prisoner of around £3,000. We need to evaluate those programmes to determine the effectiveness of the funding and whether they actually tackle offending behaviour.
The demonisation and public labelling of people as criminals after they have paid their debt to society remains a key concern for many people who work to tackle reoffending. Stigmatisation in communities, much of which is perpetuated by print media, affects reintegration. Headlines in bold capital letters slating someone as being a beast, a crook, a con or an animal are unhelpful and inflammatory. When the court has sentenced a person, he or she should be left to serve their punishment, and not demonised by people who are trying to sell papers.
Only a few weeks ago, the cross-party group on families affected by imprisonment had members of the print media in attendance and heard that papers and politicians have a role to play in tackling the stigma that ex-prisoners face in communities. We need a culture change. Other countries have managed it and, indeed, view someone’s being sentenced as the community failing that person as much as the person failing their community. Reintegration can happen only when people feel safe in their communities.
The recent fall in reoffending rates has to be welcomed, but we need to be cautious that we do not see it as meaning that the current system is working because the figures are not a definitive measure of all reoffending. The current system lacks consistency and co-ordination and we need fully to welcome modernisation and reform. Let us also remember that Audit Scotland’s report told us that reoffending costs us £3 billion each year. How many schools, hospitals and public services could that money fund?
15:05
I congratulate Mary Fee on what I thought was a fine speech. I also congratulate the Parliament on the fact that we are debating a motion with no amendments. I suspect that that shows that members across all the parties are keen to unite as a Parliament as this piece of work goes forward to ensure that we come together not just to increase protections for society but to do more to rehabilitate those who have been through the judicial process.
The best way in which to keep the public safe is to prevent offenders from reoffending in the first place. Blocking the path to education, training and employment would clearly be counterproductive in relation to reducing reoffending rates. Indeed, the evidence shows that placing barriers to employment and so forth makes reoffending far more likely.
It is with that in mind that I view both the debate generally and the terms of the review of the Rehabilitation of Offenders Act 1974 specifically. As the cabinet secretary mentioned, that act determines when former prisoners or those who have received non-prison sentences have to disclose to employers the fact that they have had convictions. Seemingly populist attempts to make society safer can be counterproductive and make us less safe. I hope that we can get cross-party agreement on that.
I will be interested to hear how the Government seeks to amend the 1974 act and its proposals on when disclosure of previous offending should be required. I note that the cabinet secretary is open to suggestions on how the law should change and that he has restated that there should be no dilution of protection for vulnerable groups and appropriate protection when employees have access to at-risk client groups. That is vital.
It seems rather arbitrary that those who go to prison for two and a half years or less no longer have to disclose a conviction after a certain period of time because it becomes spent, but that if they do a day more than 30 months they must disclose it ad infinitum. That does not make sense. It seems to involve drawing a line in the sand just for the sake of it.
There is a similar position for alternatives to prison. Whether a person has to disclose an offence depends on which of the two categories they are in—namely those with community payback orders and those with fines. That does not make sense to me.
We do not need to overhaul the system, but we need to look at it again, take a weather check on it and modernise it. We seem to have started to do that. I note from a briefing for this debate that a 2013 order means that we can go the other way when that is required, such as in relation to those who seek employment in what could be considered industries that may attract more unsavoury types. I know that, given the problems that we have had with the security industry, people continue to have to disclose certain convictions in it, and I could mention other such industries.
I would be interested to know whether the cabinet secretary has given further thought to whether people should always have to disclose certain convictions depending on the sector in which they seek to be employed, not because they deal with vulnerable groups but perhaps because their area of the economy is targeted by serious organised criminals. We should give thought to that as well.
Of course, there is another side of the coin. The issue is not just about trying to reduce reoffending; it is also about society’s duty to rehabilitate offenders. Graeme Pearson mentioned 1,308 projects, but he might want to revise that to 1,309 because I am about to mention another one that is developing in north Glasgow; I would like to draw the cabinet secretary’s attention to it.
The project is run by Open Gates, which operates on the old Pars bakery site near Possil in an old derelict building that the charity has restored with the support of Scottish Canals. The charity is working in a positive and constructive way with five national top-end former prisoners who are out on licence to make sure that they have the support and skills that they need to progress with their lives. The volunteer-led project allows them to gain a series of skills, such as upholstery, wood turning, carpentry, French polishing and strip and dip of wood and metal.
The model is that those lifers—or life-licensed individuals—can become volunteers who work with low-level young offenders in the community. They give peer support and skills to young people who have offended and who we wish not to reoffend. That vital project will add something to tackling reoffending rates.
I have written to the cabinet secretary in the past few weeks specifically in relation to that project and I have asked him to come and visit it. I hope that in his summing up he will confirm that he will come and see the good work that is being done in the Possil area to tackle reoffending and the peer support that is being offered.
In the time I have left, I want to mention one gentleman whom I have permission to say a little about. David Crimin is a former lifer who was convicted when he was 16 years old and who served 16 years in prison. He is now 42. In his 10 years of freedom he has always worked voluntarily. From responding to requests from the elderly to wallpaper and paint rooms to cutting hair for friends and family, he has always kept himself busy. He is now a valuable part of the team at Open Gates, which hopes to give him his first full-time job. He also has qualifications in bricklaying, painting and decorating and hairdressing.
I could say a lot more about David, but the one thing I want to say is that, although he got many of those skills while he was in prison, because of the stigma of being in prison and the associated barriers to employment he is only now really able to use them. Via Open Gates, he hopes to pass his skills on to young people who, we hope, will not start on a life of crime. By providing peer support and rehabilitation, such projects can prevent them from taking that path.
15:12
Scotland needs a robust yet compassionate justice system—a targeted and flexible justice system. I therefore welcome the Scottish Government’s decision to examine how the Rehabilitation of Offenders Act 1974 could be reformed in order to reflect those principles.
I believe that the act can and must work better for both offenders and the communities that they have harmed and to which we return them. I am sure that, like me, many members will have had constituents visit their surgeries to express concerns about the act—constituents who have reflected on their actions, regret their crimes and now believe that they are being unduly prevented from moving on. That is often particularly true of those who committed crimes when they were young. Making a single mistake, or a bad choice driven by desperation or foolish audacity, can shut down a young person’s chance of getting on in life at all.
For the most part, once the rehabilitation period has expired, we treat individuals as though they had never committed the offence. I agree that that is right if they do not pose any continuing risk, but the question is: at what point should we wipe the slate clean? In England and Wales, the coalition Government reforms mean that convictions that result in custodial sentences of up to 48 months can now eventually be considered spent. It has amended—and I think for the most part reduced—the length of the rehabilitation periods. Both those proposals are worthy of consideration.
We must ask whether Scotland has it right. Is it right that convictions that result in prison sentences of over two and a half years will never be considered spent? Is it right to send out the message that these people can never be fully rehabilitated?
Often sentences are longer now than they were in 1974, which means that convictions for some crimes that would once have been considered spent must now forever be disclosed. If we are to avoid isolating people and driving them back into criminal activity, we need to think very carefully about the barriers that we erect that might prevent ex-offenders from getting a job, somewhere to live, a bank account or qualifications.
As the cabinet secretary stressed, however, those who are considered to pose a continuing risk must continue to be required to disclose their past activities. In the most serious cases, some categories of employment must remain out of bounds, because safeguarding vulnerable groups must remain the paramount concern.
If we are serious about reducing reoffending, the Government needs to recognise that too many people are sent to prison, particularly on short sentences. Alternatives such as community-based justice programmes and diversion-from-prosecution projects are often more appropriate, more valuable and more successful in reducing reoffending, especially among young people who need help to get back on track.
We have already heard how important education is—it is vital to help people to achieve their potential. However, despite all the progress that we have made, too many youngsters are still missing out. We must do more to ensure that disruptive and challenging children are not excluded from school. Why? Because we know that those who are excluded from and disenchanted with school often end up entangled in the justice system.
For those who are in prison, the Government must do more to provide meaningful learning and training activity. For example, education programmes represent an opportunity for prisoners to learn a new trade, to gain qualifications and to turn over a new leaf. However, on average, only one third of Scotland’s prisoners engaged with a learning centre in each month between December 2012 and May 2013. Let us be more imaginative about that—it could be worth considering whether an offender’s whole-hearted participation in gaining literacy skills, training and personal development courses should lead to an earlier spent conviction.
We must do more to encourage prisoners to acquire the tools that let them break the cycle of reoffending, reintegrate with society and make a meaningful contribution to their communities once they are released. That is really important.
Research demonstrates that, when ex-offenders gain employment, the risk of their reoffending reduces dramatically—by between a third and a half. Prison staff in the north-east have told me that the region is unique, because many ex-offenders can walk straight into a job as a result of the significant skills shortages that the area is experiencing. On release there, ex-prisoners perhaps have greater prospects than those elsewhere in the country.
I want that sense of opportunity to be the norm, not the exception. Instead, 30 per cent of offenders are reconvicted within one year of release. Feelings of disengagement and resignation are all too often the norm. The cost of the damage that that causes to the communities that offenders harm economically and socially is huge.
Reforming the 1974 act will have a key role in determining the future of the thousands of people who are in our prisons and in determining whether they return to prison or to communities. We must ensure that the reformed system is proportionate and that it encourages and enables people to start afresh when appropriate.
However, as I outlined, legislation is just one mechanism that is available to the Government. To reduce reoffending successfully and to enable people to become law-abiding citizens requires imagination and innovation. We cannot afford to fail the people whom we are trying to rehabilitate or the communities to which we will return them.
15:18
I am happy to follow Alison McInnes’s thoughtful speech. I welcome the opportunity to input into this debate on how the Rehabilitation of Offenders Act 1974 might be reformed.
It is absolutely right to revisit 40-year-old legislation, not least because the profile of offenders has changed dramatically. I cannot speak to the change over 40 years but, as many members know, I was a member of the HMP Craiginches visiting committee for 12 years, from 1994 until I entered this place in 2006. I am very aware that that prison’s demographic changed over that time—the population changed from persistent burglars in their 40s and 50s to a majority of young male offenders, whose crimes often relate to drug and alcohol abuse.
It is absolutely necessary to look at the offending population’s profile and to tailor any legislative change accordingly. I am not sure that, even 40 years ago, low levels of literacy and of numeracy and childhood neglect and/or abuse were not factors, but much more attention is now focused on background circumstances—and much more needs to be done to correct such wrongs.
I am pleased that all sides of the chamber seem to be on board with reviewing this legislation. It is certainly important that the Conservatives focus on this area, given George Osborne’s comments this week and the need to turn words into action.
After all, the UK statistics are striking: 68 per cent of those entering custody were unemployed in the month before; 13 per cent of prisoners have never worked; 48 per cent are below the reading level for 11-year-olds; 65 per cent are below the numeracy level for 11-year-olds; 47 per cent have no qualifications; 41 per cent of male offenders, 30 per cent of female offenders and 52 per cent of young offenders have been excluded from school; and only one in five prisoners is capable of completing a job application. However, offenders who undertake prison education are three times less likely to reoffend than those who do not and 68 per cent believe that a job is essential in preventing reoffending.
Our punishment of offenders has also changed in ways that the 1974 act could not have foreseen. When it is possible and when no risk to the public is predicted, community service is viewed as a viable alternative to prison; it helps to lower reconviction rates, is seen as making a positive contribution to society, keeps families together and maintains employment.
That is borne out by the release earlier this month of statistics that, as the cabinet secretary has already highlighted, show that reconviction rates in Scotland are at their lowest level for 14 years, with a marked fall in convictions among all groups but, in particular, in people under 21. For me, the most interesting aspect of the statistics is that the one-year reconviction rate for those sentenced to prison for three months or less is 58.9 per cent compared with 31.6 per cent for those given a community sentence. As a result, whenever it is possible—and, indeed, safe—keeping offenders out of prison is a win-win situation for offenders and the public, but where incarceration is the only option every effort at rehabilitation must be made.
That is why I was keen to see what progress had been made in the construction of HMP Grampian. I was very impressed by the amount of teaching and workshop space in the new facility. I wonder whether the cabinet secretary knows what level of interest there has been in occupying those workshops. I think that that will be key.
That said, all of that effort goes for nothing as long as a third of employers keep saying that they will never hire ex-offenders, even those charged with petty crimes. Interestingly, in a recent article in the Serco journal Ethos, Yvette Carter, the company’s representative on the employers forum for reducing reoffending, calls that approach
“a disaster for business and equality”
and goes on to discuss her determination to break down the barriers in employing ex-offenders.
Ms Carter makes it clear that
“Serco has been employing ex-offenders for years”,
saying:
“It is an opportunity to widen the pool of talent, and plenty of anecdotal evidence shows that these employees offer a ... greater degree of loyalty, commitment and engagement.”
She goes on to say:
“Recruiters often don’t realise that, unless there is a ‘need to know’ situation because of the nature of the role, the potential risks are the same as with any employee. In fact, if you hire someone who responds to an ordinary job advert, you just have to believe their CV and references. A candidate could easily hide the fact that they are an alcoholic, drug addict or have other behavioural issues that could affect their work. If you recruit an ex-offender from prison, you can choose to find out everything about his or her past, and therefore be prepared for any possible challenges.”
She also says:
“At Serco, we don’t keep a strict record of the numbers of ex-offenders on our staff as we don’t think it’s necessary. But given that one in five men of working age has committed an offence more serious than a driving conviction, and given that Serco is a major employer, there are inevitably many ex-offenders working for us, many of them employed in our catering, street cleaning, transport and recycling contracts. Recruiting ex-offenders is something that Serco wants to actively pursue.”
I am sure that there are other enlightened employers around.
Ms Carter continues:
“The only way to find out how to make this work is by trying it, one case at a time. My feeling is that if someone goes to prison, they’ve paid the price, and they shouldn’t be penalised for ever after. And for every pound of tax I pay, I don’t want it spent on somebody being incarcerated. Helping ex-offenders to start afresh is simply the right thing for us to do.”
I whole-heartedly concur and believe that the review is the right thing to do to help such employers.
15:25
I came to this subject not knowing a great deal about rehabilitation. After reading some of the briefing material, I can see why the cabinet secretary has brought the matter to the attention of the Parliament.
The 1974 act began as a private member’s bill and was variously amended and updated to become the grand hotchpotch that it probably is now. The cabinet secretary said that he is open to suggestions as to what to do with it. That is either an act of bravery or, more likely, a plea for help—possibly a bit of both. The examples in the Government’s briefing persuade me that something needs to be done. Even if we achieved nothing but a simplification of the system, that would be a worthwhile step forward. However, the hope is that we can modernise the 1974 act, look at how other jurisdictions have dealt with rehabilitation and make our system current and appropriate for the times in which we live.
I note, from the changes that were made in the 2008 revision to the act for England and Wales, that further changes are in progress although they are not yet commenced, as Alison McInnes mentioned. The proposed changes will extend the scope of the act to include those who are serving sentences of over 30 months and up to four years. That means that individuals who would never have been rehabilitated under the terms of the old act will now be rehabilitated as a result of the reform. Perhaps the cabinet secretary can give us an indication of his thinking in that regard for Scotland.
Since 1984, the average length of sentence in Scotland has gone up markedly. As a consequence, many more individuals who are serving sentences over 30 months have no chance of rehabilitation under the current system. In 1984, there were 400 or so sentences of greater than 30 months, but by 2011 the number of sentences of that duration had increased to more than 1,000. We could take the view that that is the price to be paid by individuals for their criminality, but it is hard to justify a system that reduces the number of people who might expect rehabilitation when overall crime levels are at their lowest for 39 years. To offer some hope, the threshold for rehabilitation could perhaps have been linked in some way to the sentence lengths being imposed as we moved through those years.
What is happening in other jurisdictions? There is quite a variation in how rehabilitation is delivered. In Belgium, a very simple approach appears to be taken whereby a person can apply for rehabilitation at any time after completion of the sentence and, if granted, the records are removed completely from the registry. In Australia, where there is no obligation to destroy criminal records, they may not be disclosed after the convictions are spent—which is usually 10 years for adults and five years for juveniles—although, similar to the Scottish system, convictions involving a prison sentence of more than 30 months will remain unspent. In Estonia, which is one of the countries to examine the matter most recently, rehabilitation lengths of one, two, three, five and 10 years are applied depending on the sentence. However, in general, a three-year sentence threshold seems to apply to distinguish between rehabilitation periods of either five years or 10 years, which is quite a contrast to what happens in Scotland. Finally, in America, criminal records generally remain on record without termination, with some possible exceptions if the offender was a minor at the time of the offence.
Those examples illustrate how complex the process can be, but it seems that in all cases, except that of America, individuals can seek some form of rehabilitation—or even expungement of their records—that would not be possible in Scotland under the present arrangements.
In section 3 of the Scottish Government’s discussion paper, a number of examples are given of a record that involves a less serious offence remaining on a person’s register in cases in which a subsequent offence is committed. Currently, such a person will never become rehabilitated in terms of both offences. We can take the view that that is too bad and that it is just reward for continued offending, but it was probably not the intention of the original act to compound in perpetuity a record of those less serious offences.
The purpose of all this is to reduce reoffending and to strike the correct balance between the protection of the public and the offering of a route back to a normal life to those offenders who have demonstrated that they pose no further risk to society. Although it is entirely correct that serious offenders must remain on the radar to protect the public, can we say the same of a young person in their 20s who is convicted of a minor offence of breach of the peace, who may have that record hanging over them for years to come?
There is enough research on tackling reoffending to support the rehabilitation route as opposed to the supervision and sanctions route as a means of reducing reoffending in society. A study by Tong and Farrington in 2007 showed a 14 per cent reduction in recidivism in Canada, the US and the UK among offenders who were involved in programmes that focused on rehabilitation, whereas only modest improvements—if any—were achieved as a result of a sanctions-based approach.
I know that we are not discussing rehabilitation policy directly, but keeping on record and providing disclosure of a person’s blemished record in perpetuity when that record involves less serious offences perhaps does not make a useful contribution to the overall task that we face in reducing reoffending.
I support the move by the Scottish Government to re-examine the system of determining the appropriate length of time after which convictions may be regarded as spent. The issue appears to be dealt with differently in other jurisdictions, and the Government’s re-examination will make a very useful contribution to the achievement of our ultimate goal of tackling reoffending and offering individuals a positive route back into society.
15:32
As Christine Grahame said, repetition could well be the norm for much of the debate.
As we have heard, the world has changed a great deal in the 40 years since the Rehabilitation of Offenders Act 1974 was written. The basic objectives of the act—to provide a balance between, on one hand, public protection and, on the other, rehabilitation and reducing reoffending—remain desirable, but social and legal changes have rendered the act less effective and have possibly made it counterproductive. For example, employers are now much more likely to inquire about criminal records. In addition, the fact that we have longer sentences means that there are more sentences of longer than 30 months that are never spent.
There are several areas in which change could be made to create a more focused rehabilitation regime in prisons, with better education, work and training, and drug rehabilitation; more measured and effective treatment of ex-offenders that will benefit them and the general public through reduced offending; and a more consistent approach throughout the process of rehabilitation. Contentious though it might be, I welcome the consultation that is taking place, which I hope will help us to address those matters.
It is estimated that at least a third of all adult males have a conviction and that nearly one in 10 women has a criminal record. There has been an increase in the number of professions and situations that are exempt from the provisions of the 1974 act. Given that 1 million applications for basic disclosure checks are made every year in Scotland, having a criminal record of any sort is clearly a major issue that could affect a person’s chances of securing employment. Although disclosure is an essential safeguard that was introduced to protect vulnerable groups against certain categories of offenders, it facilitates discrimination against offenders in other categories.
As a study by the Scottish centre for crime and justice research at the University of Glasgow highlights, surveys of employers and ex-offenders show that there is frequent bias against those with criminal records, which impedes their rehabilitation and reintegration into society and the jobs market. Having a criminal record also affects someone’s access to education and training, volunteering and financial arrangements such as bank accounts and insurance. Significantly, exclusion from such things can increase the likelihood of reoffending
Studies suggest that the risk of recidivism decreases greatly within the rehabilitation periods of the 1974 act and that there is a strong correlation between employment and reduced reoffending. That makes sense, because employment provides financial and social stability. It also turns on its head the argument about public protection versus rehabilitation, because in many cases rehabilitation through employment is the best way to ensure public protection from reoffending. Some employers know that and those who have hired ex-offenders are often enthusiastic about doing so in the future, but they are not the norm.
What do we do about that? Other countries have a variety of arrangements. The consultation document summarises them, using the summary from the SCCJR paper. However, I note that it leaves out the paper’s health warning that it describes only the stated laws and policies and not how things work in practice. What we see abroad is that rehabilitation periods, where they exist, range from six months to 20 years, according to age, sentence type and sentence length. Unlike the UK, most countries do not restrict the offences that are eligible for rehabilitation by sentence length, and some completely destroy the criminal record once it is spent.
The SCCJR study suggests three options: modification of the rehabilitation periods; providing a certificate of rehabilitation; and making exclusion specific to certain jobs. Changing rehabilitation periods would help, but it is a broad-brush approach and therefore something of a compromise. The certificate is an interesting idea that I believe should be explored further. It could be tied into more productive rehabilitation activity in prison, where at the moment there is little distinction between time spent playing football and time spent attending education classes. That is perhaps why the former is 10 times more popular than the latter.
The third suggestion has much to recommend it, although it would require a much more sophisticated scheme of administration, because whole professions are excluded from the 1974 act. There could be much more differentiation of offences. Offenders who undertake community service with vulnerable groups can be subsequently excluded from any employment involving those groups. Surely there is scope for better assessment of risk.
The Rehabilitation of Offenders Act 1974 came from a private member’s bill that was heavily criticised and extensively amended, which made it complicated and sometimes difficult to interpret. Its simplification therefore seems an attractive alternative, but better still would be well-thought-out legislation that addresses the complexity of the issues that need to be tackled. We need a clear framework for the rehabilitation of offenders, but it needs to be flexible enough to be applied appropriately to a wide variety of circumstances.
15:39
I welcome the opportunity to contribute to this debate. Forty years have passed since the Rehabilitation of Offenders Act 1974 was put on the statute book. In that time, prisons, the employment market, the nature of crime and attitudes to policing have changed considerably and, in some ways, beyond recognition. It is therefore important that as legislators we review the way in which we deal with offenders.
The discussions that were held between the Scottish Government and stakeholders last year revealed a clear consensus that the current act, albeit that it is still relevant in principle, as Margaret Mitchell indicated, is not fit for purpose in modern Scotland. The introduction of an open discussion paper is therefore a welcome step in the process of modernising and updating the 1974 act to reflect the 21st century.
As the cabinet secretary said, the 1974 act had the dual purpose of protecting the public and reducing reoffending. The Scottish Government, the Scottish Parliament and, in particular, the Justice Committee have done a great deal of work on the latter matter in this parliamentary session, and I am sure that reducing reoffending will remain a priority.
I will say a few words about the public protection element of the 1974 act. It is important that any person who works in a position of authority has appropriate background checks. That is particularly true for those who work with vulnerable people, be they children or adults with additional needs. The nature of crime against vulnerable people has changed over the past 40 years; indeed, it has changed immensely over the past 15 or 20 years since the widespread advent of home computers and the internet. It is important that refreshed legislation takes into consideration all the facts of an ex-offender’s background that may be interpreted as legitimate risks to vulnerable people. More generally speaking, it is essential that known ex-offenders who may have served their sentence but still pose a threat to the public are handled in a way that minimises the danger to the public.
It is also a question of balance. We need a disclosure system that is fit for purpose in modern Scotland. We should absolutely not have a system that makes it acceptable to brand people as criminals, no matter the severity of their crime, for the rest of their lives. That badge, which is a favourite of the tabloid media, is completely incompatible with the belief that rehabilitation is possible.
That brings me to the need to reduce reoffending, not just for the sake of the public, but for the sake of the offender. The Scottish Government is doing a lot to reduce reoffending. There is a widely accepted recognition by many—if not by all—that the criminal justice system cannot simply be about locking people away for short sentences that do not work. Statistics show that 74 per cent of people who serve short sentences in prison will commit an offence again within two years of release. We need to look carefully at what that means for sentencing. The two-and-a-half-year or 30-month period for which sentences are never spent certainly seems to me to have no magic. It will be interesting to see what the consultation reveals in that respect.
The Government has, of course, given a great deal of thought to more effective sentencing, including the introduction of community payback orders. At the very least, community payback orders offer offenders the opportunity to turn their lives around by engaging in meaningful activities to the benefit of their communities. I am sure that that will be built on when the Scottish Government publishes its report on the consultation on redesigning the community justice system before the end of the year.
We accept the importance of setting offenders up for a better life post sentence and making it easier for them to avoid falling back into crime. We certainly need to remove barriers to employment. It is acknowledged that getting a job is the best thing that any ex-offender can do, and we know that historic research indicates that one in three of the long-term unemployed has a criminal record.
Members who have read the “Prejudged: Tagged for life” report by Working Links—which, incidentally, is a company that is contracted by the UK Government to oversee the Government’s employment welfare agenda—will be aware of the numerous and varied barriers that ex-offenders face in moving into work. The research in the report speaks for itself. Only 10 per cent of UK employers who were surveyed said that they would not employ an ex-offender, but only 18 per cent said that they had employed someone with a criminal record. That is despite the fact that the research in the report shows that fewer than one in 10 employers recorded a negative experience with ex-offenders. I am sure that all members will know at least some constituents who come and tell them that, not for want of trying, they cannot find a job. Currently, getting a job is no mean feat, and that is without the baggage that ex-offenders have to carry.
Updating the 1974 act presents an opportunity to work around the stigma that ex-offenders face. I have mentioned in other debates the transformative effect that legislation can have. Behaviour and attitudes can change ahead of the curve when new legislation is introduced, partly due to the media and general attention that is given in highlighting the prevailing problem. As a Parliament, we should seize the opportunity to make rehabilitation legislation work better for ex-offenders as well as for the public at large.
One matter that has not been touched on in the debate so far is the impact of defamation. Is it right that it should be a defence in an action for defamation to plead veritas without malice, or is qualified privilege still appropriate? I will not provide answers to such questions now, but the Government was right to raise them in the consultation document.
Finally, I am pleased that the Scottish Government has instigated this wide-ranging consultation following discussion with the various stakeholders, including the police, employers, Disclosure Scotland and others. I am sure that the Justice Committee—the convener would take note if she was here—will consider the issue in depth before too long and I will be very interested to see what proposals come forward from the process.
Before I call Sandra White I reiterate that we have time in hand, if any members wish to intervene on other members’ contributions. It is of course entirely up to members if they wish to take interventions.
15:45
I am happy to take interventions. This is a very consensual debate. I agree with everything that members have said so far.
For many years I have spoken about the disclosure system. It has been said that the 1974 act is complicated. Certainly, aspects of it are perceived to be complicated. For example, groups can put forward a disclosure in one person’s name which can actually cover 12, 15 or even 30 people. We must look closely at that. In one instance, which I will not give details of here, among a group of 30 there were several who had criminal convictions but that was not disclosed because the disclosure was put forward as one action. That has not been raised before but it may come out in the review process.
Through the Justice Committee I have visited prisons and, of course, we have constituents who come to us. Willie Coffey gave the example of a 20-year-old man or woman who has committed a crime and done their time but, as Mary Fee said, that hangs over their head throughout their life and may affect employment or family matters. We have to consider the disclosure process in the form of rehabilitation.
I will touch on two parts of the motion. The first is whether the 1974 act needs to be modernised and reformed. At the start of my speech, I said that this has been a very consensual debate and that we all agree that the act has to be modernised and reformed. There is no doubt about that. Christine Grahame said that it does not work properly, is perceived to be complicated and is poorly understood. Employers and ex-offenders do not understand it. That is a huge barrier to the employment of ex-offenders.
The second part of the motion—Rod Campbell touched on it—is that the legislation has a dual role: to protect the public and to help to reduce re-offending. We have to remember that dual role. Mary Fee also said that, in respect of re-offending, we have to consider not only the public but also the press and how it publicises certain issues; that affects all parts of people’s lives, particularly their families. It is important to remember the dual role for the public and victims, and for those who try to move on.
The Justice Committee has done a great job. I have not been a member of it for long, perhaps a year. Others have been longer on the committee. It did a great job when it considered the prison estate and how to stop the revolving door, how to stop people reoffending. Maureen Watt, in her contribution, said that there has been success in that respect and that the rate of reoffending is down. That is welcome.
We have also considered mentoring, which is fantastic. The whole Parliament welcomed that proposal. We have considered community service and community pay-back orders, all of which help to prevent people going to prison. In prison, people sometimes learn new things that will not necessarily help them outside.
I will touch on the fact—I think that this is the main point of the motion—that disclosure can have a devastating effect on people’s lives. If someone is convicted of a minor crime as a 20-year-old, that can affect their chances of getting a mortgage or insurance three years or six years down the line and it can obviously also affect their chance of getting employment.
Like other members, I have spoken to many young folk—either constituents or folk I meet in my role as a member of the Justice Committee—who are in prison. The one thing that they want to do is to get out and live what they would call a normal life. Having a job and having access to their family prevents people from reoffending. We must consider that issue.
I congratulate all the parties in the Parliament on having the vision to look at the subject of reoffending and disclosure orders, which are issues that we must touch on. I ask the cabinet secretary whether there is a timescale. Like Rod Campbell, I look forward to the matter coming before the Justice Committee—Christine Grahame has just come back into the chamber, so she will probably castigate me later on for saying that.
I took a very short break and listened to Sandra White’s speech on the intercom in the building, so I have not missed a precious word.
I am glad that my words are precious.
I look forward to the Justice Committee considering the 1974 act, because it is a wee bit of an injustice that a person who committed a minor crime as a teenager or in their early twenties must pay for that throughout their life.
We are looking to the future and considering innovative ways of helping people who do not want to reoffend and who want to get back into the public realm. If someone cannot get a job when they get out of prison, it is difficult not to fall back into old ways, with old friends.
Let us look at the issue seriously—I am sure that we will do. It is nearly 2014, and it is time to look at the disclosure aspect of the 1974 act, for the sake of not just offenders but society at large. If we ensure that people get every possible help to stop them reoffending and enable them to live a good and prosperous life, we will help not just victims of crime and the general public but society as a whole.
15:52
This feels rather like the graveyard shift.
I speak in the debate for a number of reasons. First, as nearly all members said, the 1974 act is almost 40 years old and, although it has undergone review, a major review is long overdue, particularly in relation to the provision of genuine learning and skills development opportunities for offenders.
Secondly, in the years since the 1974 act was passed the world has changed, as have the rights of citizens, including those whom the courts have convicted of criminal offences. The 1974 act is no longer fit for purpose in 21st century society.
Last but not least, from my experience of working in addiction, education, social work and particularly youth justice, I know that it is vital that we take an inclusive approach to targeting and supporting young people who are deemed at risk of reoffending and that we support young and adult offenders who are serving custodial sentences.
I am sure that all members agree that early intervention is of paramount importance, especially for the identification and putting in place of measures to support those who are most at risk of developing offending behaviour. Key to that is improved learning and skills in later life. As has been shown in the Scottish Government’s document “Offender Learning: Options for Improvement”.
“There is a growing recognition that investing resources to support vulnerable families is a key part of an effective anti-poverty strategy whose many benefits will include lower rates of youth offending.”
I will turn my attention to young people in Scotland. Young people are Scotland’s biggest asset. It is in all our interests to ensure that they have encouragement and support so that they can make the transition to adulthood. However, Glasgow, the area that I represent, has been top of the local authority league of those who have the highest number of 16 to 18-year-olds in the justice system. The Scottish Prisons Commission noted that Scotland locks up a disproportionately high number of young people and, in addition to the financial cost, that has a social and economic impact on the lives of those young people. It is essential that education, learning and skills opportunities have a central role in striving to transform the future lives of those young people.
I now turn my attention to the needs of adult offenders. Research has shown that the most pressing need is adult literacy and numeracy. A comprehensive approach must be adopted to overcome the literacy issue. If literacy is not a central goal it will prove to be a major barrier to an inclusive approach to offering education, learning and skills opportunities as part of the rehabilitation programme.
I have merely signposted the need for offering education, learning and skills opportunities as an inclusive and necessary part of rehabilitation. However, at this point, I should say that all that does not necessarily need to be delivered through the usual route of sitting at a desk reading for two hours. It can be an opportunity for prisons to use sport, the gym, art, drama, mentoring, pro-social modelling and computing. Many of those activities are being used, but it would be of benefit if more were happening.
The Cabinet Secretary for Justice is right to say that when people break the law, we are right to hold them to account for their offending behaviour through our justice system. However, if rehabilitation is to have any true meaning, it is vital that the modernisation and reform of the Rehabilitation of Offenders Act 1974 incorporates provisions for genuine opportunities for offenders, so that they can develop their learning and skills acquisition and give them real tools that will help them to improve their lives after a custodial sentence, as well as the lives of their families and communities. Such approaches can offer people a route out of offending and give them a more productive and positive future, which I am sure we all seek.
It would not be inaccurate to say that the emphasis has been on punishing people. Enabling them to move on in their lives and be productive by offering them effective support has rarely been given the same priority. If the Scottish Government is genuine about taking a truly innovative approach to the rehabilitation of offenders, it will ensure that opportunities to gain education and skills are central to what is offered to an offender while they serve a custodial sentence. It is clear that learning, education and skills opportunities can have a positive impact on reducing reoffending as the vast majority of offenders share a common profile. They come from deprived backgrounds, fail to engage at school, and leave with low levels of attainment and poor skills. That reduces the number of opportunities that are available to them and all too often leads them into a confirmed pattern of repeat offending that can carry on throughout their lives.
Education, learning and skills opportunities can help to break that cycle by teaching new skills that can help offenders to change and develop a positive future for themselves and their families. I urge the Scottish Government to make education, learning and skills opportunities creative, meaningful, relevant and central to its modernisation and reform of the Rehabilitation of Offenders Act 1974.
Usually at this stage of a debate, I might be cutting members’ speeches, but in this debate I can offer the next three back-bench speakers 10 minutes each—sorry, eight minutes each. Jamie Hepburn is next and I reiterate that there is time for interventions.
16:00
Thank you, Presiding Officer, for the news that I now have eight minutes.
I was going to start by saying that I felt at a distinct disadvantage compared with Christine Grahame because I did not have the flow chart that she presented. However, now that I have found it in my briefing and had a look at it, it is not clear to me that having it is a particular advantage, as it makes for rather difficult reading and is difficult to understand. That said, I welcome today’s debate.
Clearly, we all have a shared interest in ensuring the effective rehabilitation of offenders. Allowing such individuals to become productive citizens is important. Of course, it is not always easy. We know that many of those who are in our justice system—in the prison system—have difficult and challenging underlying issues such as alcohol dependency and other substance reliance issues. Quite often, dealing with those issues requires a multi-agency approach.
Nonetheless, rehabilitation is important. It is important for the individual if a person can, after having completed their sentence, go on to lead a life that is free of criminal activity and secure gainful employment. It is clearly best for them as an individual; it is best for us all as well. Reduced levels of criminal activity may arise from rehabilitation, with fewer people being harmed by such criminal activity. If there are fewer victims of crime, the burden on the justice system will be reduced and there will be less cost to the public purse. It is well understood that incarcerating those who are convicted is an expensive—
Can the member give me some information?
I will give way—I do not know whether I will give information.
I am sure that the member will be able to help me with this. It is a laudable objective to have people reclaimed—to have new people walk out of the prison gates—but recidivism in Scotland, we are told, is extremely high. How does Scotland compare with other countries? Do other countries manage to renew the heart and soul and body when they send their prisoners out?
I do not have the exact figures to hand, but I am certainly aware that other jurisdictions deal with recidivism much better than we do. It is well known that we have a problem with the cycle of reoffending. I am aware that the Scottish Government has taken some action to try to deal with the matter, be it through focusing on short sentences or indeed through investing in trying to stop those who may be on the verge of engaging in criminal activity getting involved in the first place. Margo MacDonald’s point was certainly worth putting on the record even if I cannot give detailed information in response.
Of course, the framework for how we can best achieve rehabilitation is important, particularly when we consider it in the context of the numbers involved. They were a bit of a surprise to me. It is a pretty stark statistic that more than one third of the adult male population and nearly one tenth of the adult female population in Scotland are likely to have at least one criminal conviction. I can certainly assure Mr Carlaw that I am not among that number. The cynical part of me cannot help but notice that there are only a small number of Conservative members in the chamber. Perhaps that is to reduce our suspicions. There are only two male Conservative members in the chamber—there are not even three—so we can presumably be reassured of the credentials of Mr Johnstone and Mr Carlaw.
More seriously, it is important that we have the right framework for achieving rehabilitation. Rehabilitation can take form in a variety of ways, but those must include the provision of meaningful activity for prisoners who demonstrate that they are willing to acquire skills that they can use once they are out of prison. Margaret Mitchell gave an interesting example of such activity in the literacy programme at Saughton prison. Maureen Watt made the important point that prisoners who engage in such activities are three times more likely not to reoffend—a statistic that speaks for itself.
Of course, alternatives to a custodial sentence can also help to rehabilitate people. In my constituency, I have seen that at first hand, as did the cabinet secretary during his visit, in Duncarron fort, which is being built by the Clanranald Trust for Scotland. In that project, which is designed to be for education and tourism purposes, the restorative justice teams at North Lanarkshire Council and Falkirk Council have involved those undertaking community payback orders. I was impressed to learn that some of those who have been compelled to attend through that mechanism have subsequently returned to help the project after the completion of their sentence. That engagement in positive activity perhaps demonstrates the rehabilitative effect of community sentences.
Further to Anne McTaggart’s reference to the usefulness of physical activities in prison, although it is often thought that going to the gym is a good idea, does the member agree with me that offenders can be helped on the route to rehabilitation through yoga, which lowers their anger levels and the pumped-up feelings with which they might have gone into prison?
As a west of Scotland male, I have to confess that yoga is not my area of expertise, but I bow to the member’s knowledge of the subject. More seriously, I suppose that, if prisoners can focus their activities in that fashion—whether that be through undertaking yoga or going to the gym or whatever—that is probably a positive thing for them to do.
Beyond that range of activities, we must consider how those with a conviction can be best supported to normalise their lives following the conclusion of their sentence. Of course, what information they should be required to release to prospective employers about their previous convictions is an important part of that process.
I note that the member referred to people normalising their lives after the conclusion of their sentence. The point that I made in my speech—which I know the member will have followed avidly—is that the idea is to normalise them within prison. Part of my point about access to telephones and family life and so on is that there should not be that barrier.
I always listen to Christine Grahame’s speeches avidly. Only so much can be done to normalise the experience of people who are denied their liberty by being incarcerated for a period of time. Access to family should be a given, but access to the telephone might be more difficult because I am aware that those who know more about these matters than I do have highlighted issues that could arise if people could engage in certain types of criminal activity.
Will the member give way?
Presiding Officer, I know that I was given eight minutes, but if I give way will I get a bit longer?
You will indeed.
Let me ask a quickie. Does the member think that what crime prisoners have committed makes a difference to how they are received and are able to rejoin society?
Potentially. I will come to that point, but I think that that is an important point to consider in any changes that may be made as a result of this process. It is potentially an important part of the process.
As Graeme Pearson said, the issue of what information should be released by someone with a conviction is undoubtedly controversial. However, I think that we have a duty as a Parliament, as Bob Doris said, to act together on the issue. It is important to emphasise that the issue is not about how individuals are punished for their offending behaviour but about how information about their offending behaviour is considered in the future.
As has been well stated, the current position comes from the Rehabilitation of Offenders Act 1974. Some members have said that those provisions should be looked at because they are 40 years old. I am not necessarily convinced that that in itself is an argument to look at the issue—we should always consider whether legislation on the statute books is effective, whether it is 40 years old or four years old—but I am aware that there has been criticism of the 1974 act. I agree with Bob Doris that the cut-off in the length of sentence that is used to determine whether someone must disclose a previous conviction seems arbitrary. Alison McInnes’s point about the changed sentencing policy between 1974 and 2013 is also important, as that could mean that the current system is somewhat arbitrary.
Given that concerns have been raised and that the Government has engaged with a range of stakeholders, it is important that we are willing to look at the act again. Personally, I have no fixed views, but the system needs to be proportionate and effective. I certainly agree that, for some categories of offences and, crucially, some categories of employment, disclosure will always be necessary, but we have to put in place a framework that protects the public but gives those who want to put their criminal conviction behind them the chance to do so. I look forward to seeing what emerges from the Government’s work.
16:11
I think that the cabinet secretary used the phrase “long-standing question”, which might relate to the competing priorities under the legislation between the rights of the individual and the rights of the state. The system is proportionate and balanced and, for that reason, it enjoys public support. However, I certainly support every effort on securing employment and education. Some astonishing figures have been quoted, such as the fact that 23 per cent of convictions are for breach of the peace.
The Scottish Government is keen on preventative spend, and I certainly warmed to much of what Anne McTaggart said about how that approach could be adopted on the issue of offenders. We have high police numbers, the crime rate is at a 37-year low and reoffending is down. The other day, I saw a picture in the local paper of a PC Macleod in a primary 1 class—I point out that he was instructing rather than participating. We have campus cops. The role of education is important, because all the evidence shows that offenders have majorly underachieved in relation to numeracy and literacy and that they lack communication skills, which often contributes to their offending behaviour.
Like many others, I was delighted that, last year, Scottish Government officials held discussions with a range of people. They have come up with the notion that the system is not fit for purpose. That is a view, although I certainly hope that the intrinsic elements of the legislation are retained.
Many organisations work with the legislation. Apex Highland, with which I have a lot of dealings, certainly does tremendous work in assisting people who face many challenges, and it values them as individuals. Of course, many of them have addiction issues. Maureen Watt mentioned yoga, but Apex Highland utilises acupuncture. Indeed, I have personally sat in on one of the acupuncture group sessions, which I found very therapeutic. There are wee magnets that go in your lugs.
Apex Highland plays an important role in relation to the jobcentre. The need for enlightened employers was alluded to. Organisations such as Apex are involved in community projects. On more than one occasion, I have been asked to present the users of the service with certificates. That might be the only occasion on which those people have been given anything by way of a reward, and they genuinely value it. Also, the community genuinely values the work that they do. Hopefully, it leads to gainful employment with enlightened employers.
We need co-ordination across the public sector. That means between the UK Government with regard to benefits, the Scottish Government with regard to support for the third sector, the Scottish Prison Service and local authorities, within which we need co-ordination between housing and criminal justice social work. It should be no surprise to anyone when someone leaves prison. That should have been prepared for, which should mean that a fundamental right, namely the right to housing, is catered for. On many occasions—although not always—housing issues coupled with a six or seven-week delay in securing benefits mean that what should be a positive start is not the best of starts.
I fully concur with the member on continuity and the need for housing. He will recall that medical treatment that is provided in prison sometimes stops as soon as someone is out of the prison gates because they do not have a general practitioner and they have nobody to go to. That is another issue, particularly when people have resolved their addictions.
Christine Grahame is quite right. For that reason, NHS Highland, for instance, has provided dedicated medical staff for homeless people and people with addiction issues. It is shameful that a general practice would turn away anyone from treatment.
Christine Grahame and Mary Fee touched on the role of the family, which cannot be underplayed, as it is vital. Part of that is about co-ordination around benefits and the increasing difficulties with that. Sadly, as has been said, the issue is mainly with young male offenders, who are returning to environments where their substance abuse took place, so there is also a need to rehabilitate communities.
The cabinet secretary touched on the genesis of the 1974 act. The idea that anyone would suffer a lifelong punishment on the basis of being convicted is clearly not correct. I also wonder whether a blanket application of legislation is correct. Members have alluded to disclosure and the multi-agency approach to individual risk assessments. I wonder whether there is an opportunity for rehabilitation to be dealt with by way of the judiciary when sentencing. After all, they have all the information relating to the particular circumstances of the case and previous convictions. I hope that that can be considered.
Presumably, the behaviour of a prisoner during their time in custody would have a bearing on rehabilitation after sentence. It could be that, at the time of sentencing, a young person demonstrated themselves to be antisocial but, during their months and years in custody, repaired much of that damage. As a result, the comments of a judge at the time of sentencing might have become dated and worthless.
Yes. Graeme Pearson is entirely right. For that reason, risk assessment should be continuous. There is no doubt that an individual’s circumstances can change. Of course, the pattern of behaviour mainly concerns young, single males.
The appendix to the legislation gives some recognition of the frailty of youth, as there are different criteria for those under 18 and those over 18. I would like that to form part of any reform.
The review is worthy. We cannot state enough the wider implications for the family. If someone is trying to go about their life but cannot secure insurance or a bank account, they will not have much of a productive future.
Housing and jobs are key. I hope that the public sector will play a role on that. It would be interesting to know how many public sector organisations are fast tracking—for want of a better phrase—people who are covered by the act. I was interested in, and am still looking into, the system whereby one of the prisons was providing formal cleaning qualifications with the hope and expectation that that could result in jobs with sister public sector organisations. I appreciate the difficulties with that, but we also need confidence for offenders in a testing employment market.
Access to education is crucial. In a former career as a police officer, I dealt with two individuals—I will not say anything that will identify them—in what can only be described as violent circumstances. Both of them, who are peers with me, now lead rounded lives. One of them is involved in volunteering and is following an academic career. The other is a full-time carer for his elderly parents. That has been a salutary lesson for me that people who we might have thought would never get out the bit can move on.
The cabinet secretary talked about court-imposed fines having a five-year rehabilitation period and about three-year prison sentences having to be disclosed indefinitely. Alison McInnes talked about the change south of the border. It is important that we have compatibility of systems not only within the British isles but throughout Europe, ideally.
I welcome the review and the measured nature of the debate. Poverty has not been mentioned so far, but it has a role in offending. In the foreword to the consultation document, the cabinet secretary talks about
“increasing public confidence”
and
“strengthening community resilience”.
If we can address poverty, that will have an effect on offending and, I hope, will have positive outcomes for all.
I call the last back-bench speaker in the debate: Stewart Stevenson.
16:19
What we once thought of as criminal, we no longer see in that way; Rod Campbell talked about that change over time. One of my interests is genealogy, and if I go back some 250 years to a parish record that I have read, a poor wean is burdened to this day by a description in the record that says:
“The wean was conceived in antenuptual fornication.”
That was thought to be a high criminal offence. She was never rehabilitated because no mechanism existed for that to happen.
Thankfully, we have a different environment today. Let me start by rather didactically laying out what is a good scheme for rehabilitation. It is one that can be understood by the offender in the long term, that can be understood and operated by employers and which can command general public understanding and broad—if not necessarily universal—support. Good decisions are objective and proportionate and encourage offenders’ positive re-engagement with society. Good penalties protect society, are cost effective and minimise damage to the innocent—as Mary Fee mentioned—in that they protect families from unduly bearing the cost of offending relatives.
Peterhead prison in my constituency opened in 1888—which is the same year as Celtic Football Club was founded; I do not think that that is necessarily a coincidence—and many of my constituents have worked in the criminal justice system to very good effect. As a result of a collaboration between the then justice minister James Douglas-Home and Alex Salmond, who was then the local MP, we ended up with Peterhead moving from being the hard-man’s prison to being Scotland’s serious sex offenders prison. It is worth my while to quote what was said to the Justice 1 Committee in 2001—when closure of Peterhead prison was being contemplated—about the achievements of my constituents in that prison through the programme of rehabilitation.
“Since the programme commenced in 1993, it has had a total of 244 participants. One hundred and sixty-two of those prisoners have been liberated, 69 are still in custody, 173 prisoners completed the programme and 71 failed to finish it. Six have been reconvicted of a sexual offence and four have been recalled because of a breach of licence conditions.”—[Official Report, Justice 1 Committee, 13 November 2001; c 2752.]
That is a pretty impressive record for what is a specialist form of rehabilitation—I absolutely accept that—and for a crime in which it is much more difficult to detect reoffending. Nonetheless, it gives us some insight into the value of rehabilitation.
How do the staff who work in Peterhead prison and who deal with those difficult prisoners—serious sex offenders who have been sentenced to four years and more—feel about working in that establishment? At the time when there was a threat to close it, an officer who had been there for 12 years said:
“I have been through its troubled times with hostage taking and prisoner unrest. I survived these and carried on my duties ... Although the above was not the ideal day to day employment, we persevered and eventually the prison, after some readjustment, became the Centre of Excellence for the treatment of sex offenders ... we are now regarded as one of the top three prisons in the world in this field.
The prisoners here are classified as long term vulnerable ... if returned to the mainstream prison system, they will revert back in their shells and all the excellent work done ... will have been for nothing.”
In my constituency, I have something that has an economic value of maybe £15 million a year to the local economy, but it is something that has also delivered added value, as prisons across Scotland and elsewhere do when they tackle the difficult people in our society and offer rehabilitation.
Mary Fee mentioned families. In the serious sex offenders prison, very few offenders received visits, because in many cases the offences were committed against their families. There are serious difficulties with which we need to engage.
Many really gifted people have engaged with the subject of sex offenders. When the late Clive Fairweather was Her Majesty’s chief inspector of prisons, he was very much a reformer—notwithstanding the fact that he came from the Special Air Service, which one would not think was the natural breeding ground for prison reformers, but which I think gave him terrific insight. He engaged particularly with Peterhead prison to huge benefit.
I want to highlight another minister. This time, it is Richard Simpson, who at the time when there was a threat to close Peterhead prison was a junior justice minister in the then Scottish Executive. He made absolutely common cause with me, as the constituency member, to try to address the issues that were faced by the crumbling Victorian institution, which was still slopping out and did not meet modern standards. The physical environment made it difficult to run the kind of programmes that would successfully rehabilitate prisoners.
It is a long time ago, but I think I convened the Justice 1 Committee during that period, which also supported and recognised the value of the specialist facilities at Peterhead.
Indeed. I recall that the committee conducted evidence sessions across the wires to Canada and played a very significant and non-partisan role in saving the prison.
I spent 977 days working for Kenny MacAskill as the shadow deputy justice minister with responsibility for prisons and drug policy. [Interruption.] I always know the number. I am sorry about that—I just count things. I had the great privilege to get involved in lots of interesting things. When I was running workshops in the Caucasus I talked to the Georgian justice minister about prison policy there. His proud achievement was that since coming into office he had halved the waiting time for the queue for visiting one’s relatives in prison—it was down to only three days. If we think that we are not doing as well as we might, we should remember that the challenges are somewhat greater elsewhere.
I visited Bapaume prison, which is north of Paris, to see how it treated sex offenders, which was interesting. This comes back to a point that Maureen Watt made; the prison had a manufacturing facility that made switches for Peugeot cars, so people all over the world are driving Peugeots with parts that have been produced by prisoners in Bapaume. In the women’s part of the prison was a call centre. It was not a dummy call centre, but a call centre that was actually making outwards calls to people. In that prison, they were very effectively training women for real life after prison. There was also a mother-and-baby unit, so in the women’s wing, which housed about 120 prisoners, they had youngsters no older than 2 in with their mothers. That did not half transform the atmosphere in the women’s wing, because every woman in it was a mother to the four bairns there.
There are many opportunities for doing things differently to help to rehabilitate prisoners. Bapaume prison also had a prison kayaking team, which was going to participate in the national championships shortly after I was there.
When I visited Saughton prison, I was in a cell with six murderers. The prison staff were out of earshot and one of the men complained to me that he had been out on licence but had been recalled entirely unfairly, he thought, simply because he had been present when another murder had taken place. Not every prisoner will be successfully rehabilitated and not every prisoner will understand the requirements on them.
I will conclude with an observation. When John Vine was chief constable of Tayside Police, he told me that offending behaviour in one part of someone’s life is likely to indicate that they will offend in another part and that it is always worth inquiring of people who park in disabled parking spaces illegally, because they are four times as likely as other people to commit other crimes.
John Finnie and Graeme Pearson touched on the issue on which I want to close: whether judges could take over some of this responsibility. Three headings apply to that. A judge can suggest for how long somebody should be in rehabilitation before their conviction is spent. He should also suggest the tests that must be satisfied before a conviction is spent and, perhaps, the tasks that must successfully be completed, because we cannae see all the way into the future to know whether rehabilitation will be successful. Judges have a key role to play; perhaps that means that we should legislate less prescriptively, but empower them to play that key role.
16:30
It is the first day of a new month and it has certainly been difficult to contain members’ unbridled enthusiasm in the debate. In fact, for large sections of the debate, we managed to do something that is unique in my experience in the chamber: we cleared the public gallery. However, some of the public have returned to hear my closing speech, which delights me.
The open debate began with a speech from Christine Grahame, who bemoaned the fact that the debate was scheduled for a Tuesday afternoon. I join her in that view, because those who would normally stand where I am have detained themselves in Manchester. That has given me the generous and flattering opportunity to contribute to a justice debate.
Will Jackson Carlaw take an intervention?
I will, but may I point out that you—that Mr Stevenson—got his aristocrats mixed up earlier?
You may, as long as you do so through the chair.
Mr Stevenson got his aristocrats mixed up; he referred to James Douglas-Home, but I am sure that he meant James Douglas-Hamilton. I think that he would want to get that correct.
I knew when I said the name that I was wrong, but I just could not bring back the right name.
On scheduling of debates, perhaps we should not put our personal convenience above the needs of justice.
There stands a motto for the afternoon. I note that, according to Stewart Stevenson’s speech, poor Kenny MacAskill—I do not often feel sorry for him—had 977 days of Stewart Stevenson at his side without remission.
In history, the Romans’ definition of rehabilitation was to release people into the arena to face the lions or the gladiators. In the middle ages, the witch who drowned was deemed to be innocent; she was burned if she did not drown. As late as the Victorian era, children were still hanged for relatively minor offences. I know that some people would like to portray the modern-day Conservative Party as wanting to return to such methods of justice.
Almost to the disappointment of some—but to the cabinet secretary’s relief, I hope—the debate has proved to be consensual. All sides have quickly recognised that the response to the question that was posed in the motion that the cabinet secretary moved is, “Yes.” We are all of a mind that it is time to look at the subject.
My substantive contribution will be about employers and rehabilitation. Before I discuss that, I pay tribute to Christine Grahame, Mary Fee, Alison McInnes, Roderick Campbell, Anne McTaggart, Jamie Hepburn—whose filibuster was extraordinary—and John Finnie for their speeches.
I will speak about the position of employers as somebody who was one—I employed between 500 and 600 people. Kenny MacAskill was right to say that some employers see it almost as their duty not to employ people who have criminal records. As an employer, I recognised that. I found that people in my organisation believed, the minute that it was established that somebody had any kind of previous criminal conviction, that that automatically excluded them from any future role in the business. I fought quite hard against that.
However, it should be recognised that employers are taking a risk. It is not a sure-fire bet, as Roderick Campbell might have tried to suggest; there are occasions on which employers take risks but find that they were wrong to do so. I am looking across at Graeme Pearson because we talked on a train one afternoon about a perfect example of that; he discussed the position of a particular individual when he, wearing his former hat, was in the business.
There is risk, but there is also responsibility. The definition of rehabilitation is that people will get jobs and be able to be reintegrated into society. Therefore, we should talk up the public duty and worth to employers of being prepared to employ people who have criminal records. We acknowledge employers who give to charity and those who participate in public life in other ways, but we do not really talk up the advantage of employing former offenders or the duty that we should perhaps require.
I remember participating in something that was known as the Airborne Initiative, which was a worthwhile project that involved ex-military people working hard with offenders. The late Tommy Burns and I were both introduced to it by George Younger. We should think carefully about how to make employers feel that they have a responsibility to become more publicly associated with such initiatives. It would be useful to discuss that.
The second area that I want to mention is rehabilitation. It so happens that one or two Conservatives whom I have known have ended up behind bars. I know that there are those who think that that is an appropriate place for all Conservatives to end up, but I mention them in the knowledge that they met some Labour Party members when they were there, that the Liberal Democrats have a recent Cabinet example, and that the SNP side might in due course also, under early release, have some fairly fresh knowledge of its own about the criminal justice system.
The point that I want to make is that Jeffrey Archer and Jonathan Aitken, who were both in prison, spoke about their experience when they came out, and about the thoroughly depressing fact of illiteracy among prisoners and their inability to complete basic forms that would allow them to be employed. They were able to help with that, but the cohort of people in prison who can do so is limited. A moment ago, I was talking about employers being more encouraged to introduce people into the world of work. In the same way, perhaps we as a political class need to work with employers to see whether we can get some of them to participate within prisons to prepare people for the world of work when they come out.
That is already happening in the young offenders institution Polmont, where we saw employers doing that. Work is being done with a view to the young men leaving prison and taking up employment.
Employers should also be encouraged to provide some of the training in prisons, because the cabinet secretary will have a hard job persuading folk during a time of recession that they should put their money where we are saying their mouths should be.
I agree with both those points, but I would like to make a contrary point, because the situation is not as simple as that. As an employer, I also sometimes found that insurance companies would have a part to play and that some company policies preclude companies’ having insurance if they knowingly employ people who have criminal records. Quite a lot of work could be done in that area that would have a productive conclusion.
It is on that point that I am happy to say that my party supports the cabinet secretary’s position, and that I hope that strands of work will emerge from today’s debate that will be productive in the long run.
16:38
As many members have said, this has been a consensual debate. No amendments have been lodged, which has allowed some of our colleagues to be elsewhere, a little north of here, and they may be quite happy to be there.
Nevertheless, we have an important issue under discussion. As we have heard, the Rehabilitation of Offenders Act 1974 defines periods after which people who have convictions for less serious crimes are considered to have been rehabilitated, if they have not reoffended during that time. An individual then does not have to disclose his or her conviction, for example, on application for employment, and the employer cannot take action against him or her should that employer subsequently find out about the conviction.
Of course, since the 1974 act was passed, the Police Act 1997 has brought in provisions for access to criminal records for employment purposes, and has created three types of criminal conviction certificates, which we commonly know as disclosures. Basic disclosures reveal only unspent convictions. Standard disclosures contain information about both spent and unspent convictions, cautions, and spent and unspent alternatives to prosecution. Enhanced disclosure contains all that information along with other information that is considered to be relevant by the police or by specified Government bodies.
The Protection of Vulnerable Groups (Scotland) Act 2007 was Scotland’s response to the Bichard report, which was commissioned after the Soham murders. It introduced a membership scheme for people who work with vulnerable groups and barred from that scheme persons who had committed acts that were considered to be harmful or inappropriate towards a child or a protected adult. The consequence of that was that the exemption from having to disclose spent convictions to a potential employer was disapplied in those cases. As others have said, the situation is, therefore, quite complicated, and one of the criticisms of the 1974 act is that it is poorly understood.
We have had very few confessions today, other than the fact that Jamie Hepburn has not done yoga. However, I have a confession.
For the purposes of absolute clarity, I should say that I recently took part in a yoga class at my daughter’s nursery.
That is not as good as my confession. In 1982, I was fined £40 for riding my bicycle at half past 10 in a pedestrianised street in Cambridge. I committed the offence unintentionally, as I had forgotten that the street had recently been pedestrianised, but the rather aggressive woman police officer who dragged me into a police van was not inclined to accept forgetfulness as a defence, and treated me with considerable hostility. Thereafter, I have always felt that I should disclose that offence when asked by a potential employer whether I have any convictions. That happened most recently when I applied to join Labour’s panel of candidates for the Scottish Parliament elections in 1999. I was asked whether I had done anything that would be an embarrassment to the party. I have done lots of things that are embarrassing to me but not necessarily to the Labour Party. Nevertheless, I felt that I had to tell the party that I had been done in 1982 for riding my bike on the pavement. Members will, therefore, understand my relief when reading the Scottish Government’s discussion paper on the reform of the 1974 act, 31 years later, which suggests that my conviction for riding my bike in a pedestrianised zone is spent and I am now considered to be rehabilitated.
To be serious, this is an important matter. The stakeholders whom the Scottish Government consulted feel that there is a need for the 1974 act to be reviewed. As we know, the UK Government has already amended it through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which, among other measures, increased from 30 to 48 months the length of custodial sentences that can be considered to be spent. It also reduced the length of time before a person’s conviction can be considered to be spent. I am not going to make any suggestions along those lines at the moment, because we have not considered any evidence so far. However, I was interested in the references that Willie Coffey and John Pentland made to alternative approaches that are taken in other jurisdictions.
As others have said, rehabilitation of offenders is a much wider issue than whether and when a person’s convictions can be considered to be spent. Whether or not a conviction is ever spent, rehabilitation should be part of whatever sentence is imposed. The cabinet secretary and Graeme Pearson—along with other members—referred to the statistics that almost one in three men in Scotland and a tenth of women have criminal convictions. I am not sure whether I am one of that 10 per cent. They also referred to the fact that persons who have been sentenced to less than six months in prison are more than three times as likely to be reconvicted within a year than are people who serve sentences of more than 48 months.
Margaret Mitchell and Sandra White referred to the problems with short-term sentences. Nonetheless, if those who have served longer terms reoffend, their offences tend to be a lot more serious that those of short-term prisoners.
The recently published reconviction rates in Scotland for 2009-10 show a reduction of 4.5 per cent in the number of reconvictions within one year over the past nine years. However, unfortunately, 28.4 per cent—more than a quarter of offenders—reoffend within a year, with 32 per cent or so of offenders who have been given a community payback order also reoffending within a year. Male offenders are more likely to reoffend than female offenders, and the under-21s are more likely to reoffend than older offenders.
I greatly appreciate the amount of work that Elaine Murray has done and the statistical information that she has provided. Were the stats for the better times—the period before the recession—the same? Has she considered doing that comparison?
The fact that the reconviction rate has fallen over the past nine years—which includes the recession—suggests that there has been an improvement despite the recession. I will move on to another statistic, if Margo MacDonald will forgive me.
The reconviction rate for offenders who are given drug testing and treatment orders—about two thirds of whom reoffend within a year—has also declined, but that is an extremely complex issue. Most offenders who have been given DTTOs have a complex series of problems that are associated with drug use. They might have become involved in drug use as a result of traumas that they have been through. The offences that they commit after being given a DTTO might not be drugs offences—they might be offences such as stealing, which they indulge in simply to eat, for example.
Although the reduction by 0.5 per cent each year over the past nine years of the number of reconvictions within a year is more welcome than an increase in reconvictions would be, it is still the case that reconviction rates and frequencies are high, and there is no room for any of us to be complacent. Moreover, the statistics refer only to reconviction within a year, which is a considerably shorter period than the time that it is considered necessary for a conviction to be spent and the offender rehabilitated.
We need to look at many other issues. Several members asked whether our prison sentences address the need for the offender to engage in meaningful work for sufficient proportions of the day and week to give him or her real experience of what it is like to be in work, and to train him or her in a way that will be recognised when they apply for employment after release. During the summer, I visited Cornton Vale prison, where I saw an interesting bicycle recycling project. Women are learning how to rebuild bicycles, which look as good as new afterwards. The prisoners are acquiring skills that women might not otherwise have expected to get.
As John Finnie said, many prisoners do not have the necessary communication skills, so education in that field is also important.
We also need to ask whether our community sentences involve work that benefits and repays the community, and provides the offender with the satisfaction of contributing to the community, and taking pride in doing so. At the violence reduction unit, I heard about a project at Hawkhill in Alloa, where offenders on community service have helped to create a community garden, which the community appreciates.
Anne McTaggart drew attention to the need for early intervention and the need for adult literacy and numeracy problems to be addressed. Mary Fee and Christine Grahame pointed out that agencies must work together better when offenders are released from prison, because they often need support to adopt a law-abiding lifestyle.
Recently, I spoke to Dr Oliver Aldridge of NHS Lothian, who showed me various statistics on clients on DTTOs who live in bed-and-breakfast facilities. They are likely to have little more than £12 a week to spend on food. How can someone who is on benefits, who is living in a B and B and who has a kettle but nowhere to store their food live on £12 a week without committing crime? All those issues need to be addressed when we look at rehabilitation.
16:48
It has been a remarkably wide-ranging, consensual and good-humoured debate. It is important to put on record that being consensual is no bad thing. People who visit or watch this institution sometimes think that consensus never arises when we all know that it is more often the norm than First Minister’s question time would suggest. On such an issue, it is fundamental that we have consensus, and it is to the credit of all members that we have achieved one. When we drill down into the detail, it might not be that way—there might be issues on which there is disagreement. However, I think that we all agree that it is time for a change. The 1974 act was brought in for the right reasons. It was the right thing to do then, but the society in which we live has moved on. The act has been amended and we require to catch up. In many ways, the world is much more complicated than it was back in 1974.
Other jurisdictions provide international comparators, so there is not simply the comparator of the jurisdiction south of the border. We heard from Willie Coffey on that.
I put on the record my gratitude and thanks to all members for the manner in which the debate has been conducted. We will see how we can take forward what members have said. On the point that Sandra White raised, we have no timescales as such. We are going out to consultation and would rather take the time to get the legislation right. We want to maintain the consensus that we have in the chamber today, and we want to try to get consensus on the issues outwith the chamber. We want to see whether we can achieve a balance between the views of those who represent the interests of former offenders and who try to rehabilitate them and the views of those who look after the interests of employers or other agencies who take on board the challenge of employing former offenders. As I said, no timescale has been set, but we will be happy to discuss the matter with various groups and engage with them on that.
Is it the cabinet secretary’s intention to include victims and their families as part of that wider engagement with stakeholders? I imagine that they might have a slightly different view of some of the proposals that we have heard in the debate.
Absolutely. We will take that on board. We have already been in discussion with stakeholders such as Victim Support Scotland, People Experiencing Trauma and Loss and other agencies. In my experience, Victim Support Scotland is very conscious of the issue. As Graeme Pearson and other members said, if we wish to stop reoffending, which is what many victims wish to see rather than simply people being punished for what happened to them, we must try to break the cycle of offending.
Although a great deal of the debate has centred on those who have been sentenced to periods of imprisonment, it is important to remember that they are but a small minority. There is an important debate to be had on that issue, notwithstanding the lack of media scrutiny, because, as many members—culminating in Dr Murray—pointed out, one in three adult males and one in 10 adult females have a conviction and could be subject to the legislation. However, we should also bear it in mind that although 33 per cent of adult males are likely to have a conviction, only 2 per cent of adult males will have been jailed. That said, it is appropriate that the statistic was raised—Mr Pearson and others were right to raise it—because the offenders concerned are more likely to have committed a serious offence, to have a propensity for further offending and to pose the greatest risk of harm to the public. We must therefore address the issue.
Many members used anecdotal evidence in their speeches, and I will do so, too, in pointing out that there must be an element of fairness in sentencing. I remember that when I practised as a defence agent, there were many instances in Edinburgh of behaviour that was dealt with by a police warning; at the most, in a more rural court, matters would be dealt with differently, with an alternative to prosecution. Local sheriffs and JPs should have the right to find some behaviour entirely unacceptable and impose a sentence for it. It was certainly my experience that behaviour that would get a warning from a police officer in the high streets or night club zones of Edinburgh or Glasgow would be dealt with quite robustly in a more rural situation and would probably result in a fine.
It is perfectly understandable that a sheriff will state that they are not prepared to tolerate certain behaviour in their area, but that situation creates an element of postcode justice that can have long-lasting consequences. For example, someone who shouted and swore while going down a high street in a place such as Jedburgh might have to answer for that for a very long time, but if they did the same thing in the Cowgate in Edinburgh, they would get a warning that night and that would be the end of it.
Edinburgh members might know the apocryphal tale about the police in Edinburgh at present: how they police the Cowgate is different from how they police George Street, which is different from how they police Lothian Road. I see Margaret Mitchell nodding. I do not know—she has probably been out with the Edinburgh police.
There are areas in Edinburgh where someone might be told, “Your behaviour is inappropriate, sir. You better mind and behave yourself, or go home right now.” However, in other areas, someone might find themselves detained for the same behaviour. That can have consequences when, for example, they seek to go to college, obtain employment or volunteer because their children are involved in an activity. We must consider all such aspects.
There are three matters that we are therefore seeking to address. The first is to have clear and understandable legislation, which is very important. The law has become complicated. I assure members that I have read the notes assiduously, but having done so, I would find it hard to narrate the precise details and would have to get the benefit of my officials’ advice. If that is how things are for me in my situation, how are they for an employer? I think that Jackson Carlaw and many other members asked that question.
Roddy Campbell gave some very interesting statistics about people’s willingness to employ ex-offenders and what happens in practice. Maureen Watt mentioned employers who have a blanket ban against them, and Jackson Carlaw made the fair point that employers who are prepared to take them on should be given greater support, and we should pay greater tribute to them. Gerard Eadie at C R Smith, for example, has always been willing to take on ex-offenders, even though he has told me that sometimes that trust has not been repaid. The same applies to Mactaggart and Mickel and many more. As with those who employ people with disabilities, many who employ ex-offenders recognise that they get employees who are prepared to be diligent and who pay back the trust that they have been shown. However, it is important for everyone that, wherever possible, the law should be understandable and easily accessible, and it is clear that that is not the case in this instance—not because anybody set out to make it that way, but because of the changes in society.
The second aspect has to be public protection. That is why there is no intention to change provisions that relate to the protection of vulnerable groups. Bob Doris asked about jobs. Some of that is very complicated. For example, Graeme Pearson and I recently talked about Gartcosh. There are jobs from which people would not normally be precluded in any way, but people will want to know who is employed on the crime campus at Gartcosh in construction, or even catering. Sometimes it is not simply a matter of the occupation; it is a matter of where the occupation is. We live in a changing world, and there are jobs that we have probably not even considered or which do not currently exist but which will exist in five or 10 years. We need to have an element of flexibility.
On the point that I made earlier, how do we shape up against other countries, and to what extent does poverty determine the outcome of rehabilitation?
I think that we do reasonably well compared to other countries. We can always do better, but in many ways, comparisons are difficult because many jurisdictions do not have the same statistics or analysis that we have. I think that we are in a better position than them and that sometimes we perhaps beat ourselves up unduly. We record statistics better than elsewhere.
As many members have mentioned, there are three key criteria in the rehabilitation of offenders: whether they have a home to go to; whether they have somebody—perhaps family or a friend—to support them; and whether they have something meaningful to sustain them, preferably employment, but if not that, some other activity. Whether a person is in or out of prison, those three criteria indicate the likely propensity to stay straight.
I thank the cabinet secretary for reflecting in his summing up points that I made during my speech. I also asked whether he would visit the Open Gates project in north Glasgow. Will he confirm that he would be delighted to come and see that good project in action?
I will be happy to come, if my diary obliges. I will take that on board.
The third and final aspect is to look at how we deal with the rehabilitation of offenders. There are complications relating to disclosure, and we require other agencies to look at those to ensure that we get a balance. [Interruption.]
Order, please.
In summary, we are seeking to ensure that we take on board the views of the Parliament and discuss matters with a wide range of stakeholders—Willie Coffey was quite correct to mention Victim Support Scotland, which is pivotal—to ensure that we can get an appropriate legislative framework. That framework may be the same as that south of the border, or it may not. Clearly, changes have been made south of the border. John Finnie made the important point that people should ultimately look at some element of compatibility not only across the United Kingdom but across Europe. Equally, we want to ensure that we get what is right for us and fits.
We need clear and updated legislation, and we always need to ensure that public protection is at the heart of things. Many of us were elected at the time of Bichard and all the problems that arose then, and we know that we can never afford to take our eye off the ball. Public protection must always be paramount, even if that results in some difficulties for individuals.
For example, I have dealt with a constituent’s case, which related to fostering and which involved an offence that took place some 40 years previously. I fully understand the social work department’s position: it was regrettable for him, but necessary for public protection.
We must strike a balance between providing opportunities for people to be rehabilitated and taking on board the need for public protection. We must give opportunities to people who show remorse and want to pay back, through community service hours, a fine or a custodial sentence, and who want to improve themselves and contribute in a meaningful, purposeful way, as members of our community, whether they do so by volunteering or in the workforce.