Custodial Sentences and Weapons (Scotland) Bill: Stage 1
The next item of business is a debate on motion S2M-5336, in the name of Cathy Jamieson, that the Parliament agrees to the general principles of the Custodial Sentences and Weapons (Scotland) Bill.
Just over two years ago, when I launched the Scottish Executive's criminal justice plan, I said that reducing reoffending must be a priority for every part of the criminal justice system. At that time, we knew that various steps needed to be taken. The Management of Offenders etc (Scotland) Act 2005 was passed and the eight new community justice authorities are due to assume their full responsibilities in April 2007. Reform of summary justice will also make a real difference. Building on that progress, and on our achievements in cutting crime in our communities, we must step up our efforts to target those who persistently reoffend.
The bill that we are considering today is another major step along the way. It will end the automatic, unconditional early-release system that is currently in place and replace it with a regime that balances public protection with longer-term work to address the causes of individuals' offending behaviour.
I am pleased that the Justice 2 Committee has recommended support for the bill. I am grateful to the committee, as I am to those who gave evidence, for their helpful and informed comments. We are considering the committee's report carefully and will provide by the end of the month a full response to the points it has raised, but I can say now that we have identified some matters, for example the measures on clarity in sentencing, that we accept would benefit from some fine tuning. We look forward to working with the committee on those matters during stage 2.
The new regime will ensure that sentences are managed in a structured way that allows for a proportionate response to the crime and to the risk posed by the offender, and which tries to address the causes of crime by looking at the needs of the offender.
For the first time, all offenders will be under some form of restriction for the entire sentence. For sentences of 15 days or more, there will be a combination of custody and community, and the Parole Board for Scotland will be able to ensure that some offenders are detained for longer if their behaviour in prison continues to cause concern.
For those who commit serious or serial offences, long prison terms will still be the appropriate punishment. Those who commit murder or serious violent or sexual offences will still be dealt with through the mandatory life sentence, the new order for lifelong restriction and the extended sentence. There has perhaps been some confusion about the issue, so I want to make it clear that people in those circumstances will not be affected by the proposal in the bill.
We know that prison is not the complete answer. We must maximise the work that is done in prison, including that which is done with serious offenders, so that their risk is better managed when they move back into the community.
Thankfully, those who commit very serious offences are still in the minority; most of the offenders we deal with are trapped in the revolving door of persistent reoffending. There is currently no requirement on them to address their behaviour in the community.
I agree with those who gave evidence to the committee that it is better to manage the transition back into the community than to open the prison gates and let offenders walk away, as currently happens in the vast majority of cases. That is why the bill will require everyone who is sentenced to 15 days or more to meet some form of licence conditions when they are released after serving the custodial part of the sentence. It is also why we chose 15 days or more as the threshold for the new combined structure. We want the new structure to apply to the maximum possible number of offenders. Fifteen days is the minimum period that will enable a basic assessment to be made and restrictions to be applied.
The terms of the licence conditions will be as tough as they need to be to protect the public and to get the offender to address the issues that cause him or her to continue to reoffend. The approach will also ensure that resources are targeted appropriately.
Some have questioned how much can be done in the community with shorter sentences. Intervention must be proportionate. I believe that public protection will be strengthened by ensuring that offenders get both the appropriate level of restriction and the support that they require for rehabilitation.
Some concerns have been voiced about the impact of our plans on prison numbers and on local authorities. Many of the people who gave evidence to the committee, and committee members, have raised those issues. From the very start, we have been very clear about the costs and impact of the measures. We set them out in a straightforward way in the financial memorandum. They are not inconsiderable, but we accept that tackling reoffending and enhancing public safety cannot be done cheaply.
We have said that capacity will be available to enable the Scottish Prison Service and local authorities to cope with the changes and to provide the proportionate support that is required. It is important to remember that we are doing this in the context of investing a record amount—about £1.5 million a week—in redeveloping the prison estate. There has been new build at six prisons, and a further three new accommodation blocks will be finished this year. Three prisons have been completely redeveloped and there will be two new prisons, at Addiewell and Low Moss.
We are using existing resources effectively and efficiently and we are already planning to put the right structures in place.
When we asked the judicially led Sentencing Commission for Scotland to look at the current system of early release—because we had committed to change it—we knew that there would be hard choices. We know that some people feel that the answer is simply to lock up more offenders for longer, but we believe that the measures that we propose today will deliver much more than that simplistic, one-dimensional solution.
The minister talks about people wanting to lock up more offenders for longer, but no one wants to do that. We want to lock up fewer offenders. We see the Scottish Prison Service as a deterrent to those who would offend.
I am glad to hear Mr Gallie's conversion to the cause of reducing reoffending and ensuring that we do not have to lock up as many people in the future. I look forward to his support for and comments on the bill at stage 2 in committee, and at stage 3. I reassure him that the purpose of the bill is to change the system so that we tackle the problem of reoffending and the causes of offending. We want to make it less likely that people who have been through our prison system and come back into the community return to prison.
The minister will be aware that in certain parts of the country, notably the north-east, less than half of the target number of supervisory meetings between criminal justice social workers and sex offenders are taking place. I broadly support what the minister is trying to do, but can she give us an indication of how we will find not just the extra money that is needed but the people to do the jobs that are required in criminal justice social work?
I thank Stewart Stevenson for his intervention. We have discussed the issue a number of times, so I know of his commitment to solving some of the problems in the prison system and in criminal justice social work, especially in the north-east. The community justice authorities offer us the opportunity to begin to get away from thinking that problems of offender management can be tackled simply through prison or social work responses. There are creative ways in which we can begin to supervise people, to hold them to account in the community and to get them into the appropriate services. That is different from the approach that was taken in the past.
Will the minister take a short intervention?
I would like to move on—the Presiding Officer is looking at me.
Our success will be measured by results. I believe that we will see the real benefits of the new scheme, which will contribute effectively to reducing reoffending.
I will now move on to an issue that will be of interest to Mr Sheridan. The bill is not just about ending automatic early release; it also brings in a general ban on the sale of swords, except for legitimate religious, cultural and sporting purposes, that is underpinned by a licensing system for retailers who sell swords and non-domestic knives. Because those measures are not as controversial as the others in the bill, they have not been debated to the same extent. It is nevertheless important that we recognise that the bill introduces those measures, which will be backed by very strong enforcement, including the extension to police and trading standards officers of powers of entry and seizure when they have reasonable grounds to suspect that an offence has been committed.
As with the first part of the bill, the provisions relating to swords and non-domestic knives do not stand alone. In partnership with the police and the violence reduction unit, we have taken concerted action to stamp out the blades menace that has claimed too many lives and scarred too many people in Scotland.
Will the minister give way on that point?
I will take a short intervention from Mr Sheridan.
Be very brief, Mr Sheridan.
I will. Although I support everything the minister has said so far, I am sure that prevention is a much better approach. Does the minister believe that there is room in the Scottish Executive budget for funding of an exercise similar to the show racism the red card campaign, to make the carrying of knives and blades an utterly alien concept—not a culture, but a cancer. The show racism the red card campaign worked in football. Can we develop something similar with regard to knives?
Of course. I am sure that Mr Sheridan is aware of the work that is already under way, especially the let's not scar another generation campaign, which we are running in conjunction with the violence reduction unit. I agree with the member that we must continue to educate our young people—in particular, our young men—that carrying knives is not sensible. As we know, people who carry knives are much more likely than others to end up as victims of knife crime.
I remind the chamber that the bill delivers the final parts of the five-point plan on tackling knife crime that the First Minister announced just over two years ago.
In the past year, serious violent crime has fallen to its lowest level since devolution and the incidence of fatal stabbings has fallen dramatically—to half the previous level—but there is still much more to do, and the bill will take us in the right direction.
Taken together, I think that the reforms that are set out in the bill will deliver a package of measures that will build on the progress that has been made on cutting crime, reduce the rate of reoffending and further strengthen public safety for all our communities. I therefore commend the bill to Parliament.
I move,
That the Parliament agrees to the general principles of the Custodial Sentences and Weapons (Scotland) Bill.
I thank the minister for introducing the bill and for the comments she made in her speech. We generally support the direction in which she is travelling, and we have a great deal of sympathy on some of the difficulties she is facing. At stage 1, we are dealing with the bill's general principles. We in the Scottish National Party are fully in sympathy with the two issues that the Executive is seeking to address through the bill: how to deal with weapons and sentencing policy. I wish to deal with both.
The matter that the minister has accepted is less problematic is how we deal with weapons. The proposals are a follow-on from the strategy to target the scourge of knife crime, which afflicts not just Glasgow or the central belt, but the whole of Scotland. The minister has coined the phrase "booze-and-blade culture". She is quite correct. Sadly, it blights Scotland, and we need to take action against it. We fully support endeavours to tackle those who use weapons and to address the supply of weapons.
Many of us—probably all of us—have received correspondence from various individuals protesting that they are buying or using weapons for legitimate means. We should bear it in mind that the current Lord Advocate and the previous Lord Advocate have given undertakings that the matter will be dealt with through commonsense measures. We have to trust the common sense of the Crown Office, procurators fiscal and the police. In passing the bill, nobody will be seeking to penalise those who carry out mock historical sword fights or who take part in highland dancing; we are seeking to address the booze-and-blade culture that cannot be allowed to continue.
It is not simply a matter of legislation and enforcement. As Mr Sheridan and others have said, and as my colleague, Andrew Welsh, has mentioned in debates in the past, it is also about how we educate people on, and address, a certain culture. Legislation there must be, however, and action must be taken. The Executive can be assured of our full support on the weapons aspect of the bill.
The other aspect of the bill, which concerns sentencing, has been driven primarily by the need—which I and the SNP have fully supported—to end the absurdity of automatic early release. Not only do we have some sympathy with the direction in which the Executive is going, we realise that there are difficulties to address.
It is all very well to say that we wish to end early release, but we must recognise, as the minister herself said, that it is not simply a matter of punishment or incarcerating those who have committed serious offences, or even of ensuring that communities and people are protected from those who present a danger; we must also ensure that we do not simply open the door and release people once their sentence has been served. In any democratic society, unless there is some good reason for imposing an order of lifelong restriction, people are entitled to be released at that stage. We must endeavour to ensure that they are not a continuing danger, and we must avoid the cycle of crime that, along with the booze-and-blade culture, blights Scotland. Reoffending is the basic problem that we face in addition to that culture.
It is easier to say that early release should end than to determine how the issue should be addressed. Although we fully support the bill's general principles on sentencing, we recognise that there are difficulties and that the bill as it stands is not capable of being delivered. It will require substantial amendment. We hope that the minister will take account not only of the Executive's amendments at stage 2, which will doubtless have come to mind, but of the issues that have been raised by sheriffs and academics such as Roger Houchin.
There are particular matters that we feel have to be addressed. They include some more minor issues, but the concept of the Parole Board for Scotland almost as a sentencing body appears fundamentally wrong to us. The Parole Board's role is to protect the public and to decide whether somebody is deserving of release. There is an argument, to which I think there is some substance, that it is not appropriate, perhaps even under the terms of the European convention on human rights or the separation of powers, for the Parole Board almost to impinge on sentencing. [Interruption.] That is not what the board was created for. We should not put the Parole Board in a position where it must decide what sentences people must serve, as opposed to when they can be, or are entitled to be, released. [Interruption.]
I do not doubt that the minister is well aware of the points that have been made about the deterrence aspect of sentencing. In imposing a sentence, the judiciary has to consider not only what punishment would fit the crime but a variety of other matters. There is merit in the point that Roger Houchin made in his submission to the Justice 2 Committee. How do we quantify empirically what deterrence is? How do we determine whether it works and what proportion of the sentence should be for deterrence?
Historically, a view was taken that there was a clear social problem with razor gangs and we expected the courts to ratchet up the sentencing of members of such gangs to make it clear that their behaviour was unacceptable. We acknowledged the problem and recalibrated the sentence rather than clarified what factor of any sentence was for deterrence.
We hope that the minister and her deputy will consider how we can square the circle, so that we can keep the judiciary on board. By all means let us ensure that we end the absurdity of early release, but let us also ensure that we do not compound the problems that we have by creating a system that is not fit for purpose—which seems to be the phraseology for many judicial matters—and is not viewed as satisfactory by those at the front line of sentencing policy and those who are involved in dealing with the readmission of offenders to society, whether the Parole Board or experts such as Roger Houchin.
A great deal of trust and faith is being put in criminal justice authorities. We accept that, as well as incarcerating offenders, we have to deal with their rehabilitation and monitor them to ensure that they do not reoffend. We need to ensure that greater emphasis is put on, and more resources are allocated to, dealing with offenders once they are released. I accept that some of the practicalities of implementation cannot be dealt with in the bill, but we have to get a grip and ensure that there is constant monitoring of offenders. In dealing with reoffending, we have to consider not only the period of punishment that people will serve in prison, but how to ensure that they are properly monitored and assisted to be rehabilitated into our society.
Before I call the next speaker, I remind members, and members of the public, that their mobile phones should be off.
The bill comes before the Parliament today as a result of serious concerns about the existing system of early release and the extent of knife crime.
I think that there is a unanimous view throughout the chamber that something needs to be done about the latter. It is a depressing commentary on some aspects of Scottish society that so many young men in particular put a knife in their pocket as they go out for an evening's entertainment, rather as they would put on deodorant and aftershave. Although we might wish that that were not the case, the Executive and Parliament would be failing in their duty if they did not take all possible measures to reduce the level of knife crime and its accompanying human and emotional tragedies. On that basis, we fully support part 3 of the bill. It will certainly not be a panacea, but it will help.
We have been known to criticise the introduction of more and more regulation, but we feel that the licensing of knife dealers is a positive step, although just how effective it will be remains to be seen. It is certainly worth trying. If the bill is to have any impact, it is essential that the person who sells the knife requires proof of identity from the purchaser and that a record of that is kept.
In respect of part 3, we are content to allow the situation to develop, but we have serious concerns about the sentencing and early-release provisions.
As Kenny MacAskill said, the existing approach to sentencing in Scotland is absurd—and it has been the theme of many a debate in this Parliament. I have to concede that the previous Conservative Government was wrong to increase the remission percentages, but it has to be given some credit for trying to do something about it—which Labour blocked when it came to power.
Of course, matters have been made worse by the farcical situation under the European convention on human rights, whereby remission can no longer be interfered with. In effect, remission is early release that does not have to be earned.
Week after week, usually as a result of a horrendous crime being committed by an offender on early release, the Minister for Justice and the First Minister have assured Annabel Goldie, Margaret Mitchell and me that something will be done to deal with the matter. We now know what action is being taken. In effect, instead of early release we have provision for very early release.
All that is required is legislation that states that the sentence that is passed down is the sentence that will be served—in other words, that six months means six months and that four years means four years. Instead, a hotch-potch of measures is proposed that will confuse matters even more. Under the existing provisions, a six-year sentence means four years. Under the new system, it could mean three years.
Does Mr Aitken accept that it is important that we reform the way in which offenders are managed in order to reduce the likelihood of their reoffending? Does he accept that, under the proposals in the bill, there is an opportunity for people to spend longer in the custody part than they would under the present system?
There is an easy remedy. All that is required is for the sentence to be handed down——four years or whatever—and for a further order to be made stating that the person should be under supervision for another two years, three years or whatever period the judge decides.
Under the bill, six years could mean three years. It certainly could not mean any more than four and a half years. If the Executive is seeking to end early release, by what convoluted, Kafkaesque logic have they arrived at the proposed system? The Executive claims that it is ending early release, but that is simply not true. I notice that there was a slight change in the wording this afternoon, in that Cathy Jamieson said that the Executive is committed to ending unearned automatic release without supervision. I noted that. That is exactly what the minister said.
The part of the sentence that is served in the community will be monitored by the social work department, but it will not be a custodial sentence. The matter becomes even more ludicrous when one considers that the resources that are needed to cope with the number of people who will be on licence are unlikely to be present.
Will the member take an intervention?
I do not have time. Sorry.
It is inevitable that the licence that will be granted to most offenders will contain only one condition— that they be of good behaviour. Paragraph 25 of the policy memorandum makes that clear. What is the point of the community part of the sentence if the bill has no teeth in that respect? Why not simply state on the licence that any reoffending will result in the licence being revoked and the offender's being taken back to jail? Alternatively, why not deal with the matter as the Parole Board suggests and create a separate offence that is similar to that of bail aggravation under the Criminal Procedure (Scotland) Act 1995? Any offence that the person committed while they were on licence would be an aggravation to any subsequent offence that they committed.
The practicalities of the legislation have not been thought through, although I take some comfort from what the minister said today, not least that the bill will be reviewed by the Justice 2 Committee at stage 2. Apart from anything else, it will take about 10 minutes to sentence every accused, who will be left in a state of confusion about what is going on.
We recognise that the law has changed as a result of the Bonomy proposals and the Du Plooy judgment, but I wonder whether those should be revisited as well. Although discounts for pleas are an invaluable part of the process, it is frankly ludicrous to grant an automatic discount to someone who has no defence.
The bill is a dishonest piece of legislation that will not do what the Executive claims it will do. The loss of judicial independence is worrying. The Parole Board will behind closed doors make decisions about people's liberty. That is unacceptable. We will seek radically to amend the bill at stage 2.
If I am correct, we just heard from the Conservatives a speech that called for the abolition of the Parole Board. It is the Parole Board's role not only to ensure the safety of the public but to decide whether someone represents a risk and whether they should be in the community. That is part of the bill.
The conclusion in the Justice 2 Committee's report is:
"This is a complex Bill and there are a number of questions to be answered and issues to be clarified by the Executive. Notwithstanding this, the Committee, by majority, recommends that the Parliament agrees to the general principles of this Bill."
It is interesting that the Conservative member of the committee merely abstained rather than voted against the bill. We suspect that Mr Aitken would have behaved differently.
This morning, I read Mr Aitken's comments, in which I am normally interested because of his experience in such matters. He said that the bill is a measure to empty the prisons. He obviously has not read the financial memorandum that accompanies the bill or any piece of evidence that the Justice 2 Committee received—and he plainly has not read the committee's report. If the bill is passed in its current form, an increase of between 700 and 1,100 in the average daily prison population is forecast, which would take the average daily prison population to just under 8,000 in year 5. The number of citizens incarcerated per 1,000 of the population would be the fourth highest in the world. The bill will certainly not empty the jails, and that is in the context of a falling crime rate in Scotland.
I will speak almost exclusively about sentencing. The bill's principles are absolutely correct and follow good work by the Sentencing Commission.
The minister talked about trying to reduce the number of people in our prisons, yet Jeremy Purvis suggests that the bill will increase the prison population. Surely Jeremy Purvis, rather than Bill Aitken, has got it wrong.
The issue is how the reforms will operate. As the financial memorandum says, the consequence of the reforms will be an increased prison population. The principle behind the bill is not wrong; the question is how it will operate.
The debate is about the future. The bill is about more than management and procedures. Any judicial sentence must pass a simple test: whether it will punish in a way that is appropriate to the offence; whether it will rehabilitate, to reduce the chance that a person will commit the same offence again, or another offence; whether the victim will have some satisfaction; whether resources will be pointed in the proper direction to be effective and to reduce reoffending.
The evidence that the committee received was unanimous: very short-term custodial sentences do not work. They satisfy none of the criteria I mentioned. People who trumpet short-term prison sentences actually support a softer option in many cases. Prison sentences often allow people to play the system. A justice of the peace told me of an offender who had worked out precisely how many nights in prison he would serve for his offence—and he was fine with it. He was told that the sentence would be seven nights. He would be out after half that time. If he was sentenced on a Thursday, he would be taken to prison on Friday morning. As prisons do not release people on Sundays, he would be released on Friday night and would say thanks very much. Prison works? No. In many cases, prison is soft on crime and is the soft option.
When the JP in question issued a supervised attendance order for considerably longer than the custodial sentence would have lasted, the offender's face went white, because it was a much tougher option. That offender was happy with the revolving door of very short-term prison sentences, as are many offenders and—so it seems—Mr Aitken.
Passionate advocates of very short prison sentences are not passionate advocates of safer communities and reducing reoffending.
The member has been right to raise that matter in committee and is right to do so again today. Short-term sentences in custody do not work. How does he reconcile that with his earlier point that he expects the prison population to rise to 8,000, with many more short sentences as a consequence?
That depends on whether the bill is amended. The Parliament's job is to scrutinise legislation.
One of my concerns is that the length of the custody part of a sentence is to be determined not by public protection but by the level of retribution that is required. Nowhere else in legislation could I find the concept of retribution. How sheriffs are to define it is unclear. If they are to define a new concept for the decision that they must take on whether to incarcerate someone, that will inevitably change sentencing practice rather than just sentencing management. There was a blank when the committee asked officials about the definition of "retribution". I hope that the minister will consider that matter further.
The problem is that sheriffs will not be required to consider the new concept of retribution when they set the headline sentence; they will be required to do so when they set the custody part—I am talking about 50 to 75 per cent of the overall headline sentence. Things should be the other way around. The custody part should be set on public safety grounds and the overall headline sentence should be set bearing in mind factors such as punishment and victim satisfaction.
There is also concern that there will be a revolving door if licence conditions are breached. Only those who must serve sentences of longer than six months will have supervision. If those conditions, or conditions that have been set for short-term offences, are breached, the person may be recalled, but they will have to be released unless the Parole Board thinks there is a risk to the public, which is a much higher threshold. Other options to withdraw very short-term sentences would make the bill much stronger and would not result in a prison population that is not effective.
I thank the clerks and the Scottish Parliament information centre for their support in helping the Justice 2 Committee to consider the bill, and I thank all those who provided written evidence and who gave oral evidence in committee meetings.
The sentencing part of the bill seeks to end the current unconditional early-release system—witnesses who gave evidence to the committee widely welcome that proposal. The early-release system is to be replaced by new combined custodial and community sentences that will apply to anyone who is sentenced to more than 15 days in custody. We understand that the Executive intends to provide a clearer and more understandable system for managing offenders, which will take account of public safety by targeting risk and will place victims' interests at the heart of the system. Those aims have been universally welcomed, but the committee heard serious concerns about whether the bill as drafted will achieve those outcomes. I welcome the minister's assurance that she will come back to us on those concerns and provide clarification because many questions were asked at stage 1.
I turn to resources and thresholds. Major concerns were expressed about the choice of 15 days as the threshold for the new combined sentences. Some witnesses are worried that the threshold is arbitrary and that it could create anomalies. The committee accepts that any threshold will result in anomalies, but we have sought clarification from the minister on why the 15-day threshold was chosen.
Sentencers, such as the Sheriffs Association, voiced detailed concerns about how the new provisions will operate. It is important that the factors that sentencers must take into account be clear. We have asked the minister to reconsider that matter and to examine the burdens that may fall on sentencers if they are routinely required to provide post-sentencing reports to the Parole Board. If individual sentencers set a custody part of more than 50 per cent of the sentence, there will be a serious impact on the costs that will arise as a result of the legislation. That, together with more prisoners returning to custody following breaches of licence, and the requirement for all sentences under 15 days to be served in full, will result in an increased number of people in prison. Prison numbers are already at an all-time high and overcrowding problems were highlighted by many witnesses. The committee noted their concerns and the concern that the Finance Committee expressed that the planning process to consider the impact of the additional prisoners is at only an early stage.
The bill will result in up to 8,600 offenders per annum serving part of their sentences on licence in the community, rather than being released unconditionally. The Convention of Scottish Local Authorities, the Association of Directors of Social Work, academics and groups that work with offenders expressed serious concerns about the effects of those provisions. A common theme is the fear that the volume of offenders who would come through the system would undermine the bill's aim of targeting higher-risk offenders. Several groups pointed to the limited effectiveness of short-term sentences and said that more community disposals should be employed. It was also proposed that supervision requirements should apply only to offenders who are sentenced to more than a year in custody.
The committee shares the apprehensions that have been expressed about the thresholds in the bill and whether they will provide the most effective way of targeting resources. We have also asked the Executive to consider existing research, and to consider what needs to be done to encourage confidence in the justice system and the benefits of non-custodial disposals.
Questions were asked about the process for assessing the risk that offenders pose. The Justice 2 Committee remains concerned that key decisions about who will undertake the assessment and who will refer cases to the Parole Board are yet to be made. The Risk Management Authority also questioned whether it is realistic to conduct formal risk assessment for short-term prisoners. The committee is concerned that the bill may create false expectations about risk assessment and management and so has asked for more clarity about the proposed risk assessment processes.
The bill does not specify the conditions for release of an offender on licence, so the committee recommends that such conditions be included in the bill.
Will Mr Davidson, in his capacity as the Conservative committee member who dissented, point to the principles within the bill with which he has difficulties?
The reason for my dissension is simple: I feel that the bill does not do what it says on the tin and is not yet in a form that is worthy of support.
An offender who has served less than six months will be required merely to be of good behaviour, not to reoffend and not to leave the country. Some witnesses are concerned that the conditions are not more meaningful. Prisoners are likely to receive prison social workers and qualified case workers only if they serve more than a year and are considered to pose a risk of serious harm. The committee is concerned about the type, quality and scope of post-release supervision and support, which still seem to be unclear. It is also unclear whether all offenders who breach licence conditions by committing minor offences will be subject to recall by the Scottish ministers, so we have asked for more information on that point.
Although the Parole Board welcomed much of the bill, it is concerned about the proposal to reduce tribunals to two members, rather than the current three, and to require their decisions to be unanimous. The bill also restates provisions that authorise home-detention curfews, although it is not intended that they will be used in the early stage of the bill's implementation.
Part 3 of the bill introduces a licensing regime on weapons, as the minister said. Ministers will be able to specify conditions on the licences, and local authorities will be able specify additional ones. The committee is content with the definitions and scope of the provisions in part 3, but awaits full clarification from the minister. We look forward to that and will hold her to the promise that she made today that she will clarify by the end of this month all the points that we raised in our report.
The committee agreed by majority to support the general principles of the bill.
I support the motion in the name of the minister. As a member of the Justice 2 Committee, I record my appreciation of the excellent support that the clerking team, SPICe and the committee's two advisers gave to the committee during its stage 1 interrogation of the bill.
Part 3 of the bill flows from the First Minister's five-point plan, which was announced in November 2004. The first three elements of the plan—doubling to four years the sentence for the possession of a knife in a public place, the power of arrest on suspicion of carrying a knife and increasing the minimum age for the purchase of knives from 16 to 18—now have legislative force, and a licensing scheme for the sale of non-domestic knives and swords is set out in part 3 of the bill. The committee—rightly, I believe—supports those licensing provisions. In its evidence, Strathclyde police's violence reduction unit made it clear that most assaults on the street use weapons such as locking knives, which are more portable than other knives and can be easily concealed. The committee concurred with the unit's view that the licensing proposals
"will assist in reducing access to such weapons and will send out a message to communities within Scotland."
The committee notes and welcomes the comments that the deputy minister made when she gave evidence and acknowledged that the bill's provisions can provide only a partial solution to the problem of knife crime. However, I believe that the proposals, along with the other legislative action that has already been taken, and allied to educational measures, can allow us to take a major step forward in ending the needless bloodshed that is cutting short too many young lives in Scotland. I am sure that that sentiment will be echoed throughout the chamber.
I want to focus on some aspects of parts 1 and 2 of the bill, which contain provisions relating to custodial sentences and aim to deliver the Executive's commitment to end automatic unconditional early release of offenders. I am certain that most, if not all, colleagues in the chamber and the citizens of Scotland will welcome this much-needed reform of the present provisions in respect of release of offenders. As I recall, everyone who gave evidence to the committee supported this necessary change and the complementary commitment in the bill to achieve greater clarity in sentencing, which is what people want.
However, work must be done at stage 2 to clarify how certain proposals will work in practice. First, there is the issue of the 15-day threshold for applying the custody and community sentence regime. The bill envisages that the current system of automatic and sometimes unconditional early release will be replaced by a new sentence-management regime for custodial sentences of 15 days or more, comprising a custody part and a community part. Given that the threshold for triggering the combined sentence is 15 days, I would like to concentrate on a number of concerns that were raised during stage 1 pertaining to the efficacy and the effects of short-term sentences.
Many people who gave evidence voiced considerable apprehension about the possible effects of the thresholds in the bill; for example, some witnesses fear that the thresholds will lead to ineffective targeting of finite resources. The Scottish Consortium on Crime and Criminal Justice expressed in a frank fashion considerable doubts about the efficacy of the threshold, and it suggested that an increase for post-release supervision to six months would take 7,000 to 8,000 offenders out of the system. On the other hand, as members can see in paragraph 63 of the report, the Risk Management Authority stated that its preference would be for a cut-off point of sentences of one year.
In effect, concerns about the threshold for post-release supervision emphasise the desire to limit the number of very-short-sentence, low-risk-of-harm prisoners coming into custody, so that resources can be focused on prisoners who pose greater risk. That, with the related issue of prison numbers, needs to be thoroughly examined at stage 2 in order that resources can be targeted effectively. We need to produce a legislative framework that will allow the most appropriate mix of custody and community and which will win the confidence of Scotland's citizens because it provides not a soft option but a smart option, punishes appropriately and rehabilitates effectively. Effective rehabilitation combined with appropriate condign punishment is the mix that is required by the people of Scotland.
Of course, there are a number of other important areas that will have to be considered during stage 2, including the type, quality and scope of post-release support and supervision. However, I believe that the aims of the bill are correct. On that basis, I support the motion in the minister's name.
Although I joined the Justice 2 Committee only recently and so was not present to hear a lot of evidence that the committee took, it became clear to me at an early stage that the general principles of the bill are broadly sound. However, the evidence that I heard also made it clear that the bill requires considerable amendment at stage 2 and, possibly, at stage 3 to ensure that its underlying policy objectives can be achieved.
I have long been of the view that there is a need for greater transparency in our sentencing process and I supported the legislation that was scrutinised by the Justice 1 Committee, which brought in the tariff system that gives greater transparency in relation to life sentences. That is particularly beneficial to victims who now know, when they leave the court, exactly how long the prisoner will spend in prison before even being considered for release.
I know, however, that it is much more complex to achieve something similar in respect of shorter-term sentences. The concerns that are raised in the Justice 2 Committee's report on the bill illustrate the nature of the difficulties that the Executive must address if we are to achieve greater transparency in sentencing while maintaining public confidence throughout the process.
As David Davidson and Bill Butler briefly mentioned, the measures in the bill include a 15-day threshold. Evidence that we received highlighted the potentially perverse logic that is contained within that proposed timescale. As the bill stands, an offender who is sentenced to a sentence of less than 15 days will be required to spend the whole period in custody, whereas an offender who is sentenced to 20 days will potentially be released within 10 days.
I will make a point of information in response to the issue that Michael Matheson and other members have raised. Members might find it helpful to understand that offenders who serve less than 15 days make up a very small percentage of the prison population. For example, of the daily prison population in 2005-06, the average number of people who had been sentenced to less than 15 days was just two. That figure excludes fine defaulters, who come by a different route. The bill tries to capture as many people as possible in the combined sentence structure. I hope that members find that helpful.
That is helpful, but it also raises a question about the value of locking up people for such short periods, given that there are so few of them.
An interesting point is that, when the committee took evidence from the minister, the explanation that we received for why the 15-day threshold was chosen was that 15 days was considered to be the minimum period in the community that is practical for engaging with an offender. However, if an offender is given a sentence of 20 days and is released after spending 50 per cent of that time in custody, the community part of his sentence will, in effect, be 10 days—it will be shorter than the 15 days that is needed for practical engagement. Practical engagement is the key issue. It is all very well to say that we can engage with offenders during their sentences, but the question is whether such engagement will be meaningful in tackling offending behaviour. I remain concerned about whether the engagement will be practical or meaningful. The committee has made it plain that a clear rationale must be given for the 15-day threshold. I accept that the minister has given some clarification on that today, but I remain to be convinced about the way in which the Executive arrived at that threshold.
A second issue of concern is the risk assessment process, which clearly has an important part to play in ensuring public confidence and protecting the public. Committee members had generally assumed that the risk assessment during the custodial part of an offender's sentence would be undertaken by Scottish Prison Service staff, but it became clear from Tony Cameron's evidence that that had not been agreed and—as we all know—what Tony Cameron says, goes. Obviously, it is important that the responsibility for leading on the risk assessments should be clear. We accept that risk assessments should involve joint working between the SPS and community social work services, but one body must be given clear responsibility for the process.
An additional issue is the quality of risk assessment that can be achieved with offenders who are in prison for short periods. The Risk Management Authority, which provides the Executive with expertise on the issue, said that a two-year period is needed to carry out a detailed and dynamic risk assessment that will be meaningful and purposeful. Therefore, we need a little reality in respect of how effectively the risk management process will play out on the ground.
In conclusion, I welcome the general principles of the bill, but it clearly needs to be amended not only for technical reasons but to ensure that its policy objectives can be effectively implemented at the end of the day.
The present system of automatic and unconditional early release of prisoners is rightly discredited; the system alarms victims and communities because they cannot understand why a person who has been sentenced to four years can be released after only two and can be kept under supervision only in particular circumstances—for example, if the person is a sex offender.
The Custodial Sentences and Weapons (Scotland) Bill should provide more clarity for victims and the public alike. There should be a clear public announcement in court by the sheriff of the minimum time that an offender will spend in jail. That time will be at least half, and up to three quarters, of the sentence. There will be a risk assessment in prison for those who will serve less than three quarters of their sentence in custody. That assessment will decide—in real time—whether a prisoner should be allowed to complete their sentence in the community. Crucially, it will also decide whether the rehabilitation programmes and support services that have been begun in prison will continue in the community where the prisoner will serve the remainder of their sentence under licence conditions.
The principles of the bill have been warmly welcomed. Once enacted, the bill will work alongside the Management of Offenders etc (Scotland) Act 2005, which requires close co-operation between the Scottish Prison Service and the community justice associations, and builds on the integrated case management that has already been developed to deal with certain categories of offenders.
Much of the focus of debate in the Justice 2 Committee was on the custodial part of the sentence—especially on the perceived anomaly of the 15-day cut-off, whereby a 15-day sentence will be served totally in custody, but anything more will be served half in custody and half in the community. As other members have said, wherever the cut-off is, there will be an anomaly. The minister said that there is a minimum time in which rehabilitation measures are possible, but we need a fuller explanation of the minister's thinking. The minister might wish to consider whether there will be particular impacts on female offenders, who tend to be at the lower end of the tariff and who might need support.
We must not overlook the fact that the part of the sentence that is served in the community is just as important as the part of the sentence that is served in jail. Bill Whyte of the criminal justice social work development centre said in evidence:
"I value the bill's recognition that a period in the community should be part of the sentence … because that is what is likely to give us a chance to connect."—[Official Report, Justice 2 Committee, 14 November 2006; c 2967.]
The question that is therefore raised is this: can we have a seamless transition when we consider the numbers of prisoners that it is predicted will come through the prison system? It would be wonderful to be able to offer all offenders a gold standard of support after they leave prison, but there is concern that practical realities will mean that, if there is no prioritisation of resources to those who are most in need, resources will be spread too thinly, to the detriment of all.
I am sure that the Executive has given thought to that and, although I do not expect to see such practicalities in the bill, it would be useful to hear from the minister how priorities will be judged and who will make the judgments. As has been mentioned by other members, one solution that was mooted in evidence was that we should do away with short-term custodial sentences for minor offenders. Witnesses could not, however, agree on a cut-off point.
The debate has been going on for several years, and I feel that the committee was sidetracked somewhat from the main aspects of the bill. It is now perfectly possible for sheriffs to sentence offenders to community disposals. The number of sheriffs who do so is increasing; such disposals are increasingly seen as being neither soft nor ineffective. However, persuading sheriffs to increase the use of such disposals is outwith the scope of the bill, which deals with how custodial sentences should be managed when they are imposed. I hope that the Executive will do all that it can to promote the use of community disposals instead of prison disposals.
Sheriffs take a while to become comfortable with new sentences; naturally, they take time to examine them. We are told that they are somewhat uncertain about section 6 of the bill, which outlines the criteria that should be used in sentencing. It would be helpful if ministers could clarify that. I was pleased to hear the minister's commitment that the section would be reviewed.
Concerns have also been expressed that sheriffs may recalibrate sentences to retain the status quo—although ministers have indicated that that should not happen.
Another area of concern is the process of recall to prison if licence is breached. If release on licence is to be meaningful, a breach must be dealt with when it occurs. However, that raises questions of resources—for example, for the Parole Board, which will review the case, and for the Prison Service, which will provide accommodation. It has been suggested that there could be a revolving-door scenario. Questions have also been asked about the number of members of the Parole Board. Many of the questions will be answered when the detailed information work by the planning group is completed. I know that many of the bodies that asked those questions are members of the planning group, so I assume that they will address their own concerns. I look forward to their solutions.
I turn to the proposals in part 3 to restrict the sale of non-domestic knives and swords. I am sure that there is no one in the chamber who will not welcome those restrictions. We have heard over a number of months—not just during our consideration of the bill—from the violence reduction unit and from accident and emergency consultants about the seriousness of the knife-carrying culture that exists principally in west-central Scotland, although it is not exclusive to that area. Some other parts of the country may, in fact, have been complacent. I fear that that has been true of the area that I represent, although the Northern constabulary has recently expressed concerns about an increase in knife carrying and in the use of knives as weapons in assaults and robberies—in one case, a bayonet was used—and has said that any measure that stops casual carrying, mostly by young men, of those lethal weapons is to be commended. Victims and perpetrators are interchangeable and fatalities or serious injury can occur through panic and ignorance of basic anatomy. Let us do all that we can to stop it.
I support the principles of the bill and recommend it to Parliament.
I have to say that I am disappointed with the contents of a long-promised bill. Outside this Parliament building, out in the community, there is general disillusionment with the justice system, and what is required is reassurance for the law-abiding general public. To my mind, simplicity is needed in the way in which courts deal with those who are found guilty of crimes, but the bill gives us complexity. Bill Butler talked about clarity, and I believe that he had it right. Maureen Macmillan also hinted at that; she felt that there needs to be greater understanding by the public. Quite honestly, I do not think that the bill will achieve that.
My party's aim since the first days of the Parliament has been to end automatic early release, but that will not be achieved by the fulfilment of the aims of the bill. Kenny MacAskill asked how we could achieve our aim. If he looks back at Michael Forsyth's Crime and Punishment (Scotland) Act 1997, he will see that we certainly could have achieved the aim of ending automatic early release in a reasonable manner. That act provided a practical approach that the public could understand. Judges and sheriffs made the decisions, and convicted persons and victims knew exactly what the determination of the judges and sheriffs meant.
Will Mr Gallie give way?
I will finish this point first.
The 1997 act recognised the need for encouragement for those who were sent to prison by allowing for an element of remission, albeit for a sixth of the sentence. I advise Jeremy Purvis that the Parole Board would have had a role in determining whether that sixth should be allowed or not.
I shall be careful not to intrude on Mr Gallie's disagreement with his front-bench spokesman on interference with the integrity and independence of the judiciary. However, I want to know what the rationale is behind remission of a sixth of the sentence. If the Conservatives' policy is to have some remission, they must accept that there is a degree of discretion, and part of that discretion is to do with the rehabilitation of the prisoner. Why is it a sixth?
A sixth was set in the act as a limiting factor. The proportion of the sentence could perhaps be moved a little bit, but it could certainly not be moved to a half, or even more, as is suggested in the bill that we are debating. I turn the argument back to Jeremy Purvis and his ministers and ask them why we should accept the levels of remission that they have proposed. The judge and the sheriffs should determine the length of the sentence, and thereafter we should leave it at that, although remission somewhere along the line would be reasonable.
The 1997 act was supported by Labour Party members, by the Scottish nationalists and by the Tories. Why did the Labour Government not implement it after it was returned? The Liberals voted against the Crime and Punishment (Scotland) Bill, so I suppose that they have a right to object to the point that I am making.
I accept that the Tories can take some criticism, because our Prisoners and Criminal Proceedings (Scotland) Act 1993 introduced a flawed approach to automatic release. Bill Walker and I—two Tories—were the only people to object to the bill; everyone else went along with it.
In the early days of the Scottish Parliament, no less a person than Jim Wallace, who was Minister for Justice at the time, said that prisoner numbers would fall dramatically. He was so confident that that would happen that he accepted cuts in the Scottish prison budget. His thinking at the time seems to have been flawed, as was that of the Government when it took certain steps on prison management. Jeremy Purvis talked about the swell in prison numbers and the fact that prison numbers will continue to rise. If we end the current system of automatic early release, prison numbers will undoubtedly pick up, although that will happen only in the short term.
We are currently recycling criminals, to the detriment of the courts and prisons through which former prisoners constantly pass, and to the detriment of society, because we have created a situation in which people who have not paid their dues to society return to society to reoffend. Today's edition of The Scotsman reports that a 67-year-old man has been sentenced to seven years in prison for possession of cocaine. The man was sentenced to five years in 1997 for robbery and to eight years in 2001 for possession of cocaine—that is his track record.
You should wind up now, Mr Gallie.
The guy has been sentenced to 20 years in total, but under the current arrangements he will almost certainly be out of prison by 2010. The case underlines my concerns and the public's confusion.
On knives—
Mr Gallie, you are over time. I would appreciate it if you could wind up.
I am sorry; I am winding up.
I welcome the suggestion that changes be made to the licensing of knives and suggest that it would be commendable of the Government to include in the bill some of the sentencing provisions in my Carrying of Knives etc (Scotland) Act 1993.
Like Bill Butler, I thank the Justice 2 Committee clerks, our advisers, ministers and their officials, and everyone who gave evidence to the committee, because I can muster considerably more enthusiasm for the bill than can Phil Gallie. I very much welcome the bill, which delivers on our commitment to end automatic unconditional early release.
There is no doubt that there is considerable public concern about sentencing. Like many members who have spoken in the debate, I am aware of the distress that victims and communities feel when someone who has been convicted of a crime is released early and is back on the streets, with no requirement for the person to report to the authorities or for further action to be taken. People just do not understand that. We must ensure that there is clarity and transparency in sentencing. The bill lays the foundations for such an approach and will improve communities' understanding.
As other members said, the bill contains proposals for an overall sentence that will consist of two elements: a custody part and a community part. A minimum of 50 per cent of the overall sentence must be served in custody, so if a person is sentenced to a combined term of four years, made up of two years in custody and two years on licence in the community, they will serve the whole of the two-year custodial sentence in jail. They will not be released early—indeed, the custody part of the sentence can be increased to 75 per cent of the overall sentence. I welcome that approach.
I want to highlight two issues on which the committee thinks that further clarification from the minister is necessary. First, I turn to the bill's provision on the home detention curfew. The home detention curfew has been an extremely useful initiative, releasing certain prisoners—when it is appropriate to do so because they are low-risk offenders—to serve the remainder of their sentences in the community. However, although the home detention curfew has been relatively successful, I am genuinely concerned that the clarity that will be brought to sentencing by the main provisions of the bill will, in effect, be undermined. Rather than a guaranteed minimum of 50 per cent of the sentence being served in jail, less time might be a consequence of the home detention curfew. The minister has, helpfully, said that the Executive does not envisage the use of the home detention curfew in the early stages of the bill's implementation. That is welcome. However, there is genuine concern that the clarity and transparency that ministers, rightly, seek to deliver in sentencing may be undermined. On that basis, I hope that the issue can be reviewed.
Secondly, I welcome the proposal for there to be a community part to each sentence as a means of helping the rehabilitation and reintegration of offenders. We know that the seamless continuation of rehabilitation programmes that are started in prison and continued in the community is desirable to address offending behaviour and reduce the risk of reoffending. Unlike the previous system, which was introduced by the Tories, the community sentence will have conditions attached to it, making clear what is expected of the prisoner. There might be a requirement to attend drug or alcohol counselling; a restriction on travel and movement; supervision by the police; or tagging. Serious breaches will be dealt with swiftly, with offenders being recalled to custody.
The concern that was expressed to the committee is that, in the case of short sentences, it would be difficult to do a meaningful amount of work with offenders either in custody or in the community to rehabilitate them. It would, equally, be difficult to put in place meaningful supervision and assessments of need in respect of the shortest sentences. I have some sympathy with the suggestion that it would be better to target resources at the serious offenders who are on longer sentences. Ministers themselves may well have suggested that. I wonder, therefore, whether ministers will consider a system of assessment and supervision that is proportionate and which reflects the reality of what can be achieved, given the length of the sentences.
Part 3 covers restrictions on the sale of weapons. I remember when the First Minister announced a five-point action plan to tackle the problem of knife crime. It was widely welcomed by the police, who tackle knife crime in our communities daily; by health professionals, who deal with the serious damage that knives do to victims; and, importantly, by communities themselves, who suffer the consequences of knife crime. The First Minister said that the Executive would double the length of the sentence for possession of a knife from two years to four years. He also said that we would ensure that the police made more use of stop-and-search powers and had powers to arrest people whom they suspected of carrying knives. He said that we would increase the minimum age for the purchase of knives from 16 to 18; that we would introduce a licensing scheme for the sale of non-domestic knives; and that we would ban the sale of swords. The bill completes the work that was started in the Police, Public Order and Criminal Justice (Scotland) Act 2006 in September, and it is very welcome.
Each year, we see people being injured and, in some cases, dying at the hands of knife-wielding young men. In many cases, the attacks are not premeditated but spring from the mistaken belief that people who carry knives are somehow protecting themselves. The statistics tell us how foolish that view is. The minister is absolutely right to focus on the booze-and-blade culture in Scotland. If, through these measures and a process of education, we can help to end the needless bloodshed that is cutting short young lives, the bill will have made a considerable difference. I welcome the proposals—more important, my community welcomes the proposals—and I urge support for the general principles of the bill.
The bill's policy objectives, which have been mentioned by most members who have spoken in the debate so far, are laudable. I want to see a clearer, more understandable system for the management of offenders while they are in custody or on licence in the community—a system that takes account of public safety by managing risk and which has the interests of victims at its heart. The problem, however, is that the bill does not meet those objectives. Any examination of the evidence that was given to the Justice 2 Committee will show that it is a widely held view that the bill fails to fulfil the objectives that are set out in the policy.
The Scottish Consortium on Crime and Criminal Justice told the committee that it
"regrets very much that the Scottish Executive is choosing to follow a path that, far from achieving the … intentions, would incur huge costs and have serious negative … consequences for the criminal justice system and for the safety of Scottish communities."
Likewise, Sacro said that although the bill aims to make the sentencing system clearer, it will not achieve that end but will lead to resources being absorbed when they could be spent more effectively elsewhere in the system.
The community justice authorities added:
"We … concur with the ambition of the Bill but are concerned that, as described, the Bill's purpose will not be fulfilled and may serve to further undermine rather than promote public confidence and understanding."
The Justice 2 Committee report—I am sure that all members in the chamber have read it—said that
"the Committee supports the policy objectives of the Bill"
but
"calls into question whether the measures in the Bill, as currently constituted, can achieve the stated objectives."
In all candour, I must say that I wondered, in listening to Jackie Baillie's comments, whether she was actually on the Justice 2 Committee. A conclusion in our report flies in the face of most of what she just said.
For me, things started to go badly wrong with the bill when the impact on the prison population became clear. Ministers and officials repeatedly told the committee that nothing in the bill will require judges to change their sentencing practice, but virtually every witness from whom we heard suggested that they will. The Scottish Prison Service's representative, Rachel Gwyon, told us that the measures in the bill will increase the daily prison population in this country by between 700 and 1,100 people. That is when the alarm bells started ringing. A prison population that is, as Jeremy Purvis pointed out, already at record levels and chronically overcrowded will be increased by 20 per cent. No wonder HM prisons inspectorate highlighted again its growing apprehension about a return to the 1990s disruption and riots in our prisons.
So, despite the view across the board that short-term sentences in custody are wholly ineffective and are a hugely expensive failure as far as reducing reoffending is concerned, here we have a bill that is determined to take us further up that dead end, with more people going to jail and serving longer sentences.
The community justice authorities' evidence told us that they feared that the bill would overwhelm the SPS, local authorities and independent providers because it "has ineffectiveness built in".
Jackie Baillie and the other members who said that the bill will lead to greater clarity in sentencing should consider some of the evidence that was put in front of the committee. The bill's policy memorandum says:
"A transparent sentencing regime will improve public confidence in the criminal justice system."
That is right, but again it appears that the bill does not provide it. Andrew Coyle, the professor of prison studies at King's College in London, said:
"The aim of the present Bill ‘to achieve greater clarity in sentencing' is admirable. However, it is not immediately apparent that the Bill will achieve its aim. Even when approaching it in a positive manner one needs a calculator and a great deal of patience to unravel the arithmetic of what a prison sentence will mean in the future."
If Andrew Coyle, with his credentials in criminal justice, cannot fathom out the system, what hope is there for the rest of us?
Whatever can Professor Coyle have meant? Perhaps the Sheriffs Association evidence will tell us. It said that it
"does not consider that the provisions of this Bill will achieve the objective of delivering clarity and transparency in sentencing… Although the custody part of a sentence … will be imposed and announced at the public sentencing hearing, it will not be possible to predict or state … what the duration of the period that will actually be spent in prison will turn out to be or what the conditions of licence during the community part of the sentence will be."
You have one minute, Mr Fox.
Will the member give way?
I am sorry, but I do not have time.
The Sheriffs Association goes on, in an unusually humorous vein, to ridicule the bill's proposals with the example of an offender who is found guilty of assault to severe disfigurement. I do not have time to read the joke, but it is on page 219 of the evidence if members are interested.
As others have said, there are many anomalies in the bill. I welcome the community-based sentences, given the conditions on which they will be made. From experience, we know that such sentences have a far better chance of success. I also welcome the fact that, for the first time on record, more community disposals than custodial disposals were made last year. I am sure that the minister will touch on that in her closing speech. The paradox is that the bill will lead to fewer community disposals and to more people spending more time in jail.
You must close, Mr Fox.
Agreed.
None of the Labour or Liberal members touched on the supervision and support that will have to be given. My final point relates to the evidence that we heard from Roger Houchin on support for community sentences. In his evidence, which is interesting and worthy of examination, he said:
"The most profound shortcomings of the Bill, however, concern the very limited consideration it gives to the community part of the sentence … it places all the obligations on the offender … But … makes only the scantest of references to any public duties to enable"
the offender to have access to
"opportunities … support and service in areas of housing, employment, education and training, relationships, cultural and social life, financial management and health care"
to help their full rehabilitation.
It is unusual for a committee to produce a stage 1 report that contains so many criticisms of a bill and so many questions for the Executive to answer. The bill unravelled during the evidence-taking sessions—
You must close, Mr Fox.
I am convinced that it will not work. For those reasons, the Scottish Socialist Party will not support the bill at 5 o'clock.
My regrets to Mr Harvie. I have to go to closing speeches.
I welcome the bill and support the motion.
As the minister said, the bill is the Executive's promise to end automatic, unconditional early release from prison. That said, the entitlement to any early release has to have the prisoner's co-operation. He or she must conform to any obligations that are set down, the minimum of which is that they were of good behaviour during their prison term. As Jackie Baillie said, if the prisoner is deemed a risk to the public, the term can revert to 75 per cent. Many other obligations can be imposed, but they will depend on the type of offence and the personal circumstances of the prisoner. Examples include the requirement to participate in a range of programmes on offending behaviour or addiction.
It is important that the new provision should work. The courts will have to ensure that the guilty party is fully aware of the sentence that is being passed and the consequences of any breach. The length of the sentence, minimum term in custody, and licence and any other conditions will need to be clearly understood. The obligation will be on defence agents to be more proactive in ensuring that their clients know about the process.
I have a couple of issues to raise—indeed, they are linked; I refer to 15-day sentences and fine defaulters. As the convener of the Justice 2 Committee, David Davidson, said in his speech, those areas were of considerable concern to the committee. The minister referred several times to 15 days. The question is: if a sentence of 15 days is imposed, should it be served in full? As Michael Matheson said, if that is the case, someone who is sentenced to 30 days would serve only 15 days, but someone who is sentenced to 15 days would serve the total sentence. I accept what the minister said: the number of people who receive such a sentence is quite small. However, many who are given such sentences are fine defaulters.
Under the bill, all fine defaulters will serve in full any custodial sentence that is imposed on them. My colleague Jeremy Purvis referred to the present system, under which someone who is sentenced to seven days can go into prison and be out that morning. Indeed, as Bill Aitken said, they can be out in an hour. That is wrong. All sentences of seven days should also be served in full. However, a compromise has to be made in terms of seven-day and 15-day sentences.
Much work has been done to keep fine defaulters out of prison—we have had considerable success in that area. The introduction of fines enforcement officers in the Criminal Proceedings etc (Scotland) Bill—which we will, I am sure, pass next Thursday—will also address the issue. However, the question remains: should fine defaulters be treated differently from other offenders? My view is that they should not; we should do all that we can to keep them out of prison. That is especially the case with regard to fine defaulters who are sent to Cornton Vale.
I agree with Kenny MacAskill and other members —it was perhaps the only point on which I agreed with Bill Aitken—that carrying a knife has become a culture in Scotland. We must reverse that trend, which has taken place all over Scotland.
Recently, there was a very serious murder, which involved a knife, in my constituency of Edinburgh South. The person was the first to have suffered such a serious and brutal attack in my constituency while I have been an MSP; I accept that members in other parts of the country are more aware of the problem than I am. The murder of any 17-year-old in such circumstances, wherever it happens, is shocking and must be condemned by all.
I was interested to hear that the bill would be discussed yesterday on Radio Scotland at 11.30 with Cathy MacDonald. I was in the Justice 1 Committee at the time, but the wonderful play-it-again resource on the BBC website allowed me to go back and listen to it later—the internet truly is a wonderful thing. The discussion was on the issue of knife crime, which some people in the medical profession now call a public health problem. A professor from the University of Glasgow made the case very well that among certain demographics in Glasgow, knife death is more of a risk than cancer or strokes. It was very good to hear on the programme how the police and doctors are combining to combat the problem.
That shows that tackling knife crime is crucial. I agree with the committee that a licensing scheme for non-domestic knives is a positive way forward, but other measures must be kept under review. I agree with Bill Butler that this is not the end of the issue; it is not the end of the process with regard to knife crime. We must keep it constantly under review.
This is a good bill that contains good measures, but, as I said, it might not be the end of the problem. I support the general principles of the bill.
Important issues are addressed in this complex bill: custodial sentences, community sentences and the ending of unconditional automatic early release, together with issues that relate to weapons and in particular the sale of knives and the restriction on the sale of swords.
The bill's proposals derive from the recommendations made by the Sentencing Commission for Scotland and the report published in 2006. Those recommendations come against a background of the Scottish Executive's objectives to reform the system of automatic unconditional early release and, crucially, to achieve greater clarity in sentencing.
The question is: does the bill do what it says on the tin and provide clarity? The answer is a resounding no. As my colleague Bill Aitken pointed out, it certainly does not end automatic early release. As the Subordinate Legislation Committee states, the provisions—in particular section 6(10)—that give ministers the power to vary the proportion of the custody part of sentences are ambiguous and risk being reinterpreted in the future.
The Justice 2 Committee questions whether the measures in the bill will achieve the stated objectives and seeks a clearer explanation of why the 15-day cut-off has been chosen as the point at which the combined custody and community sentence kicks in. In other words, the clarity that the ministers sought to achieve is non-existent. Instead, more confusion and uncertainty is created.
The Justice 2 Committee highlights the point. It states that
"Clarity is required about the circumstances in which reference is being made to the risk of re-offending, risk of harm or the risk of serious harm."
It adds that
"more information is required about precisely what kind of risk assessment processes are anticipated, about who will carry them out and about exactly how they are expected to contribute to reducing re-offending."
On breach and recall, the committee wants clarification and further detail on the notification process
"for the police in terms of those coming out of prison on licence and in terms of notifying Scottish Ministers of those who have committed an offence while on licence."
Similarly, the committee welcomed the minister's confirmation that the home detention curfew is not intended to be used in the initial period of the bill's implementation, but was nonetheless concerned that its continued existence as an option was likely to lead, yet again, to a lack of clarity and transparency.
I turn to the provisions in part 3 of the bill, covering weapons. Part 3 introduces a licensing scheme for non-domestic knives, as part of the overall objective of reducing knife crime in Scotland, and has been widely welcomed as a positive measure. However, the criminal law committee of the Law Society of Scotland remains
"concerned that the licensing of non-domestic knives may well, however, result in those involved in violence simply changing their weapon of choice to a domestic knife"
and is, therefore, strongly of the view that other, non-legislative measures
"must be adopted."
In view of the absence of clarity in the bill, coupled with the legitimate concern that the Justice 2 Committee expressed about the totally inadequate timescale within which it was required to issue its call for evidence, consider the evidence that was received, set out and conduct the necessary oral evidence-taking sessions, and draft and consider its report on the bill, it is difficult not to come to the conclusion that the issues that the bill seeks to address, especially regarding clarity, would have been simply and effectively addressed if any one of the amendments to end automatic early release that Bill Aitken lodged in the Parliament on four separate occasions had not been voted down by all the other parties. Those amendments would have ended automatic early release and restored honesty in sentencing. More to the point, they would have established the clarity in sentencing that the bill so spectacularly lacks.
I end by saying that the Scottish Executive's rush to legislate by pushing through the bill reflects badly on the Scottish Parliament. The Conservative party will not vote against the bill today only because of the provisions for the licensing scheme, which are the sole saving grace in this pathetic effort from the Executive.
It is appropriate that I start by referring to Margaret Mitchell's concluding remarks concerning previous attempts to address the issue of early release. On three separate occasions in the chamber, I asked Annabel Goldie to tell me the price of the change that she proposed, but on each occasion she was unable to do so. It is difficult to support proposals that do not have a price on them, even if one thinks that the policy position that they support should be pursued. I suggest to my Conservative friends—I take the risk of describing them thus—that they should consider the wider implications of proposals and avoid knee-jerk reactions.
SNP members have a number of significant criticisms of the detail of the bill, which we will pursue at stage 2 and, if necessary, beyond. However, we have no doubt that the fundamental question that we should address when considering how to vote at 5 o'clock is, does the bill meet a need? The answer, without question, is yes. I say that, of course, with regard to part 3 of the bill, which deals with knife crime and on which I will comment later. However, I also say it with regard to the provisions on sentencing. The existing system has fallen into disrepute and is in need of reform.
I take the member back to the point that he made earlier about costing and to the Crime and Punishment (Scotland) Act 1997, which the SNP supported. A money bill, giving the costs, went through with the 1997 act and answered the questions that the member has asked.
Phil Gallie makes a fair point. However, the costs today are of course substantially different from the costs that applied at that time, for a whole variety of reasons. When discussing the matter with Annabel Goldie, I even suggested that the costs might come to £100,000 per cell place, in an attempt to draw out of her her view as to what they might be. Answer came there none—and I am sorry about that. Phil Gallie's liberal credentials in the debate have been substantially enhanced—up to the point when he told us that he joined Bill Walker in voting. Even without knowing the vote, I immediately know that liberal credentials could have formed no part of any vote that Bill Walker was involved in.
Will the bill rebuild public confidence? That is the question. When a judge makes a statement of sentence at the end of a trial, they must—after the bill is passed—be able to deliver absolute clarity to those members of the public who are present, be they victims or spectators, and to the press, if they are present, so that someone can note in their diary the fact that the person who committed the offence, of which some member of the public or their relative or friend was a victim, will not be out before such-and-such a date. That is probably the test that the public will apply to that aspect of the bill. There is scope in the bill, perhaps with some work at stage 2, to deliver on that objective. That is sufficient cause to support the principles encompassed in the bill.
We have to consider what happens when the gates of the prison open and the prisoner is released into the wider community. The bill describes very well what we should be trying to do. Section 36, on curfew licences, states:
"the Scottish Ministers must have regard to the need to—
(a) protect the public at large,
(b) prevent re-offending by the prisoner, and
(c) secure the successful re-integration of the prisoner into the community."
I suggest that that describes extremely well the whole purpose of what we should be trying to do under the bill—although those words happen to appear at that particular point in the bill just because of the draftsman's construction. Those are good tests to apply to the whole bill.
Let me apply that test to the 15-day sentence threshold. The minister helpfully told us that only two prisoner places, on average, are occupied by people who are sentenced to fewer than 15 days. The threshold is set at 15 days because that is the period during which one can do a basic assessment of the needs of the prisoner and build a programme to assist with their rehabilitation, thus serving the purposes that are set out in the bill, to which I referred. If it takes that long—if people are to go to prison at all—they should go for that 15-day period, so that we can assess their needs. On the other hand, if their crime is not sufficient to justify their going to prison for that period, we should not send them to prison at all. That is a simple point.
I wish to consider one or two aspects of the part of the bill that deals with knives. The bill covers issues to do with knife dealers. Those who wish to use a weapon for nefarious purposes and who consciously seek one to inflict harm may acquire their knives by other means. It appears that auctions can provide a way for knives to be commercially disposed of without a licence. Knives will still be carried. We must somewhat focus on the issue of people carrying them and how we deal with that adequately, as well as the supply of knives, which the bill so helpfully addresses.
I thank the Law Society of Scotland for extending my vocabulary. Given that I am not a lawyer, I had not met the word "obtemper" before, but I shall treasure it from now on. Obtemper is a super word and I shall try to use it on as many occasions as possible. I have said obtemper three times so far. The Scottish National Party supports the bill.
I still do not know what obtemper means, unless it describes my speaking style when I am under pressure. I will go and look at the dictionary when I leave the chamber.
I thank members, who spoke so clearly in the debate. I acknowledge the interest in the bill and I would have been surprised if members had not spoken on it in such a thoughtful manner. We have had a useful and constructive discussion—with perhaps some honourable exceptions. We acknowledge the seriousness with which many members have approached the debate and the points that they have made. We will certainly reflect on those points and engage with everyone as we progress through the later stages of the bill. We all understand the importance of the issues involved and do not understate the significance of the critical points that have been raised. I am grateful for the general tone of the debate and I know that members will continue to contribute in the same way as we proceed.
We will of course provide a full response to the Justice 2 Committee's stage 1 report on the bill before the end of the month and will continue to work with not just the Justice 2 Committee, but all others who have an interest in the matter to ensure that the bill is as robust and fit for purpose as it can be.
Like Michael Matheson, I came to the bill slightly late and I record my thanks to all those on the committee, officials and others who have supported me in getting to this stage. I will, of course, use the fact that I came to the bill late as an alibi if I come under pressure from questions.
I remind Parliament that the bill is about not what might have been, but what will be. It is about building on our already substantial package of reforms aimed at tackling reoffending to produce a more effective sentence and management regime that incorporates both custody and community parts.
I listened to what Kenny MacAskill said and was struck by the consensual tone of his serious contribution. I say to him that we want to work with the judiciary. It is critical that we work with those who have a direct interest in the effectiveness of the bill. The bill has been shaped by the judiciary and politicians, but it has also been shaped by the experience that has been articulated by victims of crime. I commend those who, since the Parliament came into existence, have had the courage to speak up. Victims of crime, who have felt further victimised by the justice system, have given practical expression to how that experience felt. I commend constituents of mine—I know that other members have similar experiences—who have said that they are determined that no other family should have to experience what they did. The bill is part of the process of addressing the demand on us from the people of Scotland.
We understand that clarity is important. Taking account of the helpful comments that have been made, we will see where we need to make things clearer and we will continue to consider measures for achieving greater clarity. As the Minister for Justice said, we are already identifying some parts of the provisions that could benefit from fine-tuning and will take steps at stage 2 to do that. Section 6 has been flagged up, so we will consider it carefully.
We are committed to ending the current time-driven system of early release that determines what will happen to an offender based solely on the length of the sentence. We believe that that approach is no longer effective and does not give confidence. We will replace it with a framework that delivers effective punishment and public safety and gives offenders the chance to stop offending, if they are prepared to take that chance.
We believe that the custodial sentence measures strike the right balance between punishment and rehabilitation. The proposals do not change how the courts go about their business. If a judge thinks that custody is the right option in a particular case, he or she should continue to apply the same considerations, which must include public safety, as they do now in reaching that conclusion.
Somebody asked how judges balance all those issues. We employ judges and sheriffs to apply their experience, expertise and knowledge to the process and to make that judgment. That will not change. The bill will not change how sentencers arrive at decisions on whether custody is appropriate. They will continue to take account of all the information that is available to them, including any concerns about the risk to public safety.
I do not know what kind of calculator Colin Fox requires to calculate the sentence in a case where the judge says, "Your sentence is four years. Two years will be served in prison and two years will be served on licence in the community, unless you are deemed to be a risk, in which case you may spend up to a maximum of three years in custody." That seems clear to me. Also, I say to Colin Fox that the bill is not about reducing community disposals, because it deals not with sentencing policy but with sentence management. The judge or sheriff will make a judgment about whether custody is appropriate. They might decide that it is not appropriate, in which circumstances they will make a community disposal.
Will the minister take an intervention?
If I may, I will press on.
On the point about confidence and trust in the community part, the bill might have the consequence of giving sentencers more confidence that the community believes that a community disposal is reasonable. That will be a long-term process, but it is a serious prospect. The public, and especially the victim, will know when the sentence is handed down how long the offender should expect to spend in prison for punishment. They will also know that, if the offender's risk assessment continues to cause concern and the judge has not imposed the maximum punishment period, the offender can be kept in prison for longer.
The Sheriffs Association's evidence to the Justice 2 Committee, which is on page 219 of volume 2 of the committee's report, entirely refutes what the minister just said—that is, that the victim will be clear, on the day of the sentence, about the periods that the offender will serve in custody and outside. I ask the minister to look at page 219 and to clarify the matter.
Obviously, we have to continue the dialogue with all those who have an interest, including the Sheriffs Association, but the provisions seem to me to be particularly straightforward. If someone is given a four-year headline sentence, they will spend two years in prison and two years on licence in the community unless it is deemed inappropriate for them to leave prison after 50 per cent, in which case they will stay there for longer. As always, however, I am happy to continue the dialogue.
If it is proposed that the offender should be kept in prison for longer, the case will be referred to the Parole Board, which will review the case and, if necessary, direct that a further period should be spent in custody. Such offenders should find that the conditions that are placed on their licence are tougher as a result.
Jeremy Purvis raised an issue about the definition of retribution, but he will know that, since 2001, the punishment part for a life sentence prisoner must satisfy the requirements for retribution and deterrence. It is therefore reasonable to accept that that concept is familiar to the judiciary.
I was disappointed by the tone of Bill Aitken's speech. To be honest, the Scottish Socialist Party and the Tories have become a bit of a sideshow in relation to the difficult matter of balancing the two sides of the argument. The debate is partly about an issue of trust. People must have confidence that the custody part is real, that it will be taken seriously, and that the sentence that is handed out will be served. People on one side of the argument want the provisions on the custody part to be strong. However, if there is to be trust in the system, we must also give people confidence that the whole sentence matters and that the community part is a serious part of the sentence and not an easy option or a box to be ticked when the person gets out of prison.
Building that confidence is a long-term job, but we must recognise the need to balance what is coming from the two sides of the argument. That relates also to the debate about whether short-term sentences work. The answer depends on what we want them to do. Of course, sentences must be proportionate to the seriousness of the offence that has been committed. Somebody who is sentenced to 15 days will have committed a different offence from somebody who is sentenced to 15 years. That is obvious.
Sentences might signal society's view of particular offences or they might relieve the community of particular problems in the short term, but the custody part will not be the only part of someone's sentence. I recognise the point about sentences of 15 days, but Michael Matheson should be careful not to create the impression that a sentence that includes a custody part and a community part is less serious than a sentence that is served only in custody. We hope to have further dialogue on that.
There is a huge number of significant issues, but I have run out of time. We will talk further to the committee about licensing conditions and resources.
I reiterate that we have given a reassurance that we will not think about using the home detention curfew power until the new provisions are firmly bedded in and are working effectively. We certainly do not want to cut across clarity.
As for weapons, I said that the bill was part of the solution, not a partial solution. The bill will take measures that will make a huge difference, but they are not all that will be done. It does not help to have the counsel of despair that because we cannot do everything about knife crime immediately, we should do nothing and so undermine the drive towards the seriousness with which the licensing process will operate.
I hope that members will support the bill because of both its elements. It should provide more confidence in the system and, by addressing knife crime, should keep people out of the system. I urge members to support the bill's general principles.