Criminal Justice (Scotland) Bill: Stage 3
We come now to the proceedings for stage 3 of the Criminal Justice (Scotland) Bill. Members will require the bill, as amended at stage 2, the marshalled list of amendments and the groupings list. In accordance with recent practice, I shall allow two minutes for the first division and reduce the time thereafter to one minute's notice for the first division after each debate.
Section 1—Risk assessment and order for lifelong restriction
Amendment 11 is grouped with amendments 82 and 83.
Section 1 of the bill will introduce a number of new sections in the Criminal Procedure (Scotland) Act 1995 relating to the new order for lifelong restriction and the associated risk assessment provisions. New section 210C of the 1995 act deals with the preparation of the risk assessment report. A list of requirements that the risk assessor must follow when taking account, in the risk assessment report, of any allegations of criminal behaviour, whether or not that behaviour resulted in prosecution and acquittal, was inserted by an amendment at stage 2. The amendment reflected the Justice 2 Committee's concerns that the use of such information should be properly regulated.
We confirmed to the Justice 2 Committee on 5 February that we would accept the intention of the change introduced at stage 2. However, we must ensure that there is consistency between the relevant provisions as they now appear in the bill. That is the purpose of amendment 11, which will ensure that, where information about criminal behaviour is to be used in the risk assessment report, the assessor is required to explain the extent to which that behaviour has influenced the risk assessment.
Amendments 82 and 83 try again to implant extracts from the MacLean committee report into the statutory risk criteria—set out in new section 210E—that will be used to assess an offender's level of risk. As the Parliament knows—indeed, members have supported this—the new high-risk offender strategy is based extensively on recommendations in the MacLean committee's excellent report. However, as we tried to explain to Duncan Hamilton when he tried unsuccessfully to introduce identical changes at stage 2, we do not believe that the MacLean committee intended that the wording of the relevant recommendation should be adopted verbatim in the legislation. The MacLean committee was providing a steer in that respect. We believe that the construction of the risk criteria in new section 210E will achieve what the MacLean committee recommended and the agreed objective of providing an understandable and workable measure that the court can use to establish whether an offender is high risk.
We recognised the concerns that were expressed at the earlier stages of the bill's passage that the risk criteria as drafted were too wide and could have had the effect of drawing offenders who are not high risk down the risk assessment route and potentially into the new order for lifelong restriction sentence. We acted and lodged amendments to the risk criteria at stage 2 to tighten them up and to ensure that they are fit for purpose. The Justice 2 Committee accepted those amendments and I believe that, as a result, we now have an improved set of criteria.
Duncan Hamilton failed to persuade the majority of the committee to accept his proposed changes to the new criteria when he lodged identical amendments at stage 2. Roseanna Cunningham has now lodged the amendments again. We do not believe that the suggested rewording is an improvement or that it will achieve what we are all agreed should be a set of tight criteria. Indeed, as Richard Simpson said during the stage 2 debate on the same proposals, there is a real concern that the revised wording would have the reverse effect and throw open the criteria once again. In fairness, I know that that is not what Roseanna Cunningham wants.
We are confident that the construction of the criteria that now appears in the bill is the best way of achieving the agreed objective. The criteria are understandable and workable in law. Most important, we have had no indication from the judiciary, who will apply the criteria, that they present any problems or that there might be difficulties in comprehending their purpose.
I move amendment 11.
The SNP has no difficulty with amendment 11. However, we want to raise the issues that amendments 82 and 83 encompass. Although I accept the minister's comments about what happened at stage 2, I understand that the committee's decision fell to the convener's casting vote. That does not suggest that the committee had an overwhelmingly strong opinion one way or the other on the matter. As a result, it is worth taking a more detailed look at the arguments that were made at stage 2.
Effectively, we are suggesting that detail from the MacLean committee report should form part of the bill in order to narrow and clarify the risk criteria by which orders for lifelong restriction are assessed. Section 1 introduces orders for lifelong restriction into law and lays out the whole procedure in that respect. Amendments 82 and 83 seek to change the wording of the risk criteria.
We know that the MacLean committee proposed orders for lifelong restriction, although in fact they were first suggested by the SNP some years before the committee was set up—indeed, I recall raising the issues at Westminster. At stage 1, the Parole Board for Scotland, the Faculty of Advocates and the Law Society of Scotland expressed fears that the risk criteria were too broad. As a result, the Executive lodged amendments at stage 2 to restrict the original outline. Amendments 82 and 83—as I said, the same amendments were moved at stage 2 but were rejected on the casting vote of the convener of the Justice 2 Committee—would introduce into statute the precise risk criteria that the MacLean committee proposed.
New section 210E states that the risk criteria are
"that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large."
Amendment 82 would replace the words
"is a likelihood that he"
with
"are reasonable grounds for believing that the convicted person".
That terminology has been used frequently in criminal-law legislation and is absolutely acceptable. I do not understand the objection to it.
Professor David Cooke of the British Psychological Society said that it was not clear what the word "likelihood" would mean in this context. He asked whether it would mean more than 50 per cent or 95 per cent likely, for example. There is a question mark over how "likelihood" would be construed, whereas courts and lawyers would be better able to understand and consider the phrase "reasonable grounds". "Likelihood" is a much vaguer term, which is not usually used in law. The terminology that we seek to introduce is a test with which courts are far more familiar, so I believe that members should consider it.
Amendment 83 would replace the words "seriously endanger" with the phrase
"present a substantial and continuing risk to"
before the words
"the lives, or physical or psychological well-being, of members of the public at large".
The Parole Board for Scotland said in evidence at stage 1 that it hoped that the bill would make it clear that orders for lifelong restriction should be imposed only in cases where psychological factors were identified that indicated a high risk of someone seriously reoffending.
Except in the most extreme circumstances, indeterminate sentences are incompatible with proportionality, so there is an argument about whether the concept of "seriously endanger" complies with the notion of extreme circumstances. Amendment 83 would place the emphasis on the criterion of the continuing nature of danger to the public. It is not proportionate to place an order for lifelong restriction on someone who might pose a serious threat at one point, but would not do so for the rest of their life. Neither of the issues that are raised by amendments 82 and 83 was properly addressed by the ministers at stage 2. The committee was split three-three, so it is important that we return to the arguments.
The minister's position at stage 2 is similar to his position now, which is that the Executive believes that it has provided in the bill accurate legislative interpretation of the relevant MacLean recommendations. Instead of the recommendations being interpreted, we would prefer them to be included in the bill in the way that we suggest. Given the concerns that have been raised by organisations such as the Parole Board for Scotland and the Law Society of Scotland, we should seriously consider including the MacLean recommendations in the bill.
It is fair to say that the issues for consideration in the first two groups of amendments have caused genuine and general anxiety. We all acknowledge the potential dangers that those who are convicted of serious violent and sexual offences might pose on their release. We also acknowledge that, although the proposed orders for lifelong restriction are draconian, in many instances they have to be so.
It is also fair to say that the Minister for Justice has acknowledged the concerns that were articulated in earlier discussions and debate about the quality and extent of the evidence that would be necessary to obtain an order for lifelong restriction. In an ideal world, I would prefer the same criterion for evidence as would apply in a criminal court—evidence that is beyond reasonable doubt. However, I acknowledge that that is not always possible in the real world. I accept Jim Wallace's view that evidence would not be restricted to the apocryphal or to evidence that is provided by—as he said amusingly—somebody's granny. Evidence would have to be backed up by hard facts. I take comfort from the fact that not only would that be done on the basis of professional assessment, but a judge would make the eventual decision. Accordingly, in recognition of the fact that the safety of the public must be our principal concern, we are prepared to accept section 1 as amended by amendment 11.
Amendment 82, in the name of Roseanna Cunningham, would set a higher standard. Our view is that the phrase "reasonable grounds" is more satisfactory than the term "likelihood". Accordingly, we will support amendment 82.
Amendment 83 presents a slight difficulty. I appreciate that the amendment's wording is lifted from the MacLean report, but I do not think that the wording of section 1, as amended by amendment 11, would be inadequate. Therefore, I regard amendment 83 as unnecessary.
I welcome the many changes that the Executive made to section 1 mainly because of the comments in the Justice 2 Committee's report. The section deals with orders for lifelong restriction. It is fair to say that the committee was concerned about the full operation of the provisions and spent a considerable time on the section. However, not so much attention was spent on the issue outside the committee and the Executive, which is a pity, because, as a result of the MacLean report, we are about to make provisions for a new, lifelong sentence that will involve the assumption of wide-ranging powers to deal with serious and violent offenders.
In essence, the court can move for an assessment to be conducted by the risk management authority—a new body—if the offender meets certain criteria and there is a likelihood that, if at liberty, he would seriously endanger someone else's life.
The issue that Roseanna Cunningham brings to the Parliament relates to the wording that should be used in the bill. That is fair enough. Parliament should have another chance to assess the wording. It is fair to say that the committee was torn on that issue and that the decision to support the Executive relied on my casting vote.
It is important to recognise that the risk management authority is crucial to the determination of how the provision will operate. For the second time, the Parliament will be allowing the use of non-conviction information, which is a risky path to go down. We should take note of what is happening. People will be using information that might not necessarily be objective to decide whether an offender is likely to commit an offence. The committee has made it quite clear that what the minister referred to as the important standards and the quality of the risk management authority are the most important elements of the provisions.
The Executive is now amending an additional provision that the Justice 2 Committee inserted into the bill. I can accept amendment 11, as it is merely another way of saying the same thing. However, it is crucial that we stress in the bill the fact that the risk management authority has to give weight to non-conviction information that it is using to impose a lifelong sentence. The quality of that assessment is crucial. We must constantly review what the risk management authority is doing. We must be sure that it is operating to standards that ensure that people's human rights are adhered to.
The committee debated the nature of the risk management authority and its arm's-length status with Richard Simpson, who was the Deputy Minister for Justice at the time. I would like an assurance that Parliament will be able to review the decisions and the framework of the risk management authority. That is important because, although the authority will be an arm's-length body, it has to be accountable, as its decisions will impose a restriction for life on people who are deemed likely to offend again.
Amendment 11 provides better wording than that which the Justice 2 Committee provided in its stage 2 amendment. Amendment 82 comes down to a question of balance and it is for the Parliament to choose which way the balance should go. However, I prefer the wording in the bill to the wording that amendment 83 would provide. I have difficulties with the word "continuing". Some risks are intermittent but nevertheless seriously endanger lives. Therefore, it should be possible for the court to take into account the fact that, in some circumstances, some serious offenders—given the stimulus of alcohol, for example, which is freely available in the community—will commit further serious offences. That is not a permanent risk; it is a risk associated with behaviour that would occur if an order were not imposed. I urge members to reject amendment 83.
On amendment 82, we believe that the word "likelihood", which the bill uses, is acceptable terminology. It is a recognised phrase in law and it is understandable. On amendment 83, we believe that "seriously endanger" is stronger than "present … a risk".
Our policy is that the package will apply to the high-risk offender throughout his life. Our measures have addressed the concerns of the Parole Board for Scotland and the British Psychological Society. Neither body has made adverse comments on the amended provisions that we introduced at stage 2.
Amendment 11 agreed to.
Amendment 82 moved—[Roseanna Cunningham].
The question is, that amendment 82 be agreed to. Are we agreed?
No.
There will be a division. Members who wish to support Ms Alexander's amendment should press their yes buttons now.
Ms Cunningham's amendment.
What did I say?
You said, "Ms Alexander's amendment", Presiding Officer.
I am sorry. The tongue and the brain are obviously not in sync this morning. The amendment is in Roseanna Cunningham's name.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 39, Against 62, Abstentions 0.
Amendment 82 disagreed to.
Amendment 83 moved—[Roseanna Cunningham].
The question is, that amendment 83 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeish, Henry (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Mundell, David (South of Scotland) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 25, Against 76, Abstentions 0.
Amendment 83 disagreed to.
Section 8—Preparation of risk management plans: further provision
Amendment 12 is grouped with amendments 13 to 15, 84 and 17.
Sections 8 and 9 deal with the preparation, implementation and review of risk management plans. The provisions include a power for the risk management authority to direct a lead authority to take steps to bring any version of the risk management plan into line with the agreed standards. Although we do not expect the RMA to have to exercise that power often, the power has to be available in respect of the initial plan and any amended plan. We believe that it is important to ensure that the RMA has all the necessary powers to ensure that risk management plans are implemented. The Justice 2 Committee shared that view.
Amendment 12 is a minor drafting amendment to section 8(7) to make it clear that the right to appeal against any direction given by the risk management authority under section 8(6) applies to the lead authority and to any other person with duties under the risk management plan. It also ensures consistency with references to any "other person" in sections 8 and 9.
There is currently no way in which the RMA can address the situation—albeit highly unlikely—in which a risk management plan is not being implemented. That potential gap was spotted by the Justice 2 Committee during its thorough scrutiny of the bill, and I acknowledge with thanks the committee's helpful contribution.
At stage 2, Richard Simpson said that he would lodge an amendment to enable the risk management authority to act when it was clear that a plan was not being implemented without reasonable cause. He stressed that we wanted to ensure that any amendment was in tune with the rest of section 8 and reflected the balance of the relationship between the RMA and the lead authorities. I confirmed in my letter of 5 February that we would be lodging amendments to achieve that.
Amendment 13 will give the RMA the power to direct a lead authority or any other person to implement a new risk management plan where they are failing without reasonable excuse to do so. The amendment also provides a right of appeal against the RMA's direction on the ground that it is unreasonable.
Amendment 14 will give power to the RMA to set the time limit within which an amended plan may be required. Those provisions are the same as the ones that are already provided under the bill for circumstances where the risk management plan has not been prepared. Amendment 15 amends section 9(5) to clarify that intention.
At stage 2, the committee accepted an amendment requiring the Parole Board for Scotland to have regard to a risk management plan on each and every occasion when it is considering the case of an offender who has an order for lifelong restriction. That requirement now comes under section 35A.
Amendment 17 removes a provision in schedule 1 that has become redundant as a result of amendments at stage 2.
Section 13 details the risk management authority's statutory accounting and annual reporting functions. Roseanna Cunningham's amendment 84 seeks to make specific provision for the risk management authority to include an account of any directions given to it by the Scottish ministers under their powers detailed in section 12. As we said at stage 1 and during stage 2 consideration of section 13, such prescription is not necessary in primary legislation.
The purpose of sections 12 and 13 is to provide for the standard accountability and enabling powers that are required when establishing a new public body. Those provisions, which accord with Government guidelines, give the statutory basis for the construction of the framework under which the RMA will operate.
I am happy to give the assurance that any directions that the Scottish ministers give to the RMA under section 12 will be publicly available—for example, on the RMA website. It will be open to the RMA to include information about those directions in its annual report, although that may not always be appropriate—for example, if the directions relate to standard housekeeping matters about the keeping of records. Clearly, however, important issues would be contained in the annual report. In any event, as the directions will be publicly available, there is no need to require the RMA to include that information in its annual report.
I agree that it is essential that the RMA be obliged to report annually on fundamental matters such as whether the Scottish ministers have exercised their directional powers under section 12 and we will ensure that that happens. Those matters are not, however, for primary legislation, and I ask the member not to move amendment 84.
I move amendment 12.
Amendment 84 would require the risk management authority to include in its annual report an account of directions given to it by the Scottish ministers. We seek some assurance from the minister—I hope that he will address some of these issues when he winds up—about the exercise of the powers of the Scottish ministers to give direction to the risk management authority.
It is proposed that the RMA will be a non-departmental public body. However, section 12(3) states:
"The Scottish Ministers may for the purpose of or in connection with the exercise of the Risk Management Authority's functions give directions to the Authority; and the Authority is to comply with any such direction."
The policy memorandum, in considering the various alternatives to setting up the RMA as a quango, states:
"The final alternative would be for the role to be carried out by a body under the direct control of the Scottish Ministers. However, it was felt more appropriate that these functions should be carried out at arm's length from the Scottish Ministers, which cannot be achieved by a body under their direct control".
It is difficult to see how the authority is not under the direct control of the Scottish ministers if it has to follow their directions.
The system has the disadvantages both of the additional bureaucracy of a quango and of direct control. I am not sure why the option of making the RMA an agency was dismissed, given that both the Scottish Prison Service and the Scottish Court Service are executive agencies. We are concerned about the authority's independence.
One of the authority's roles is to examine and approve risk management plans that local authority criminal justice social work departments or the Scottish ministers have prepared. Surely the independence of the RMA is vital. It is an oddity that the Scottish ministers will require approval from a body that they will be able to direct. What happens if the Scottish ministers take a particular attitude to risk management plans? They could say either that plans should require constant close surveillance or that they should involve as little expenditure as possible. Because of the way in which politics works, both are distinct possibilities. If the Scottish ministers wanted to dictate what an offender's risk management plan should be, they need only direct the RMA not to approve any other. Ministers might be so influenced by a media panic about an offender that they acted in that way. What price then the arm's-length body that the bill is supposed to establish?
I am seeking an assurance that ministerial powers will be used only for purposes of efficient management and will not be used to influence policy with regard to risk management plans or individual risk management plans.
We take no great exception to any of the amendments in this group. It is sensible that the risk management authority should be able to impose a reasonable time limit on local authorities for the preparation of amended risk management plans or to give appropriate directions where it is felt that matters are not proceeding as they should.
Similarly, we are anxious that the appropriate reporting procedures should be in place. For that reason, we think that amendment 84, in the name of Roseanna Cunningham, has some merit. We are inclined to support the amendment but, like Ms Cunningham, we will listen to the minister's explanation with interest.
The minister has cleared up a concern that I had about amendment 17. As he correctly explained, the amendment removes something that is redundant from the bill. Clearly, that should happen.
At stage 2, Richard Simpson made it clear that the Scottish ministers were to lay a copy of the report before Parliament. Roseanna Cunningham raised a number of issues relating to direction, accountability and independence. Cabinet Office guidance on non-departmental public bodies, which the Executive has adopted, states that one of the key tasks in setting up a public body is the preparation of an agreed management statement. Such a published statement is required for all new public bodies. It is a key document that defines the nature of the relationship between the Executive and the public body at a strategic level.
We recognise that each management statement will be different, but at the very least such a statement should set out the role and aims of the body, what it is responsible for and how it relates to the sponsor department. The statement should specify arrangements for publishing an annual report and accounts, which outline performance of the body against key targets.
As Roseanna Cunningham indicated, there are concerns both about accountability and about independence. It is right to define the relationship between the RMA and the Scottish ministers. The Scottish Executive cannot give directions on fundamental issues that are within the discretion of the RMA. However, the Scottish ministers can direct the Parole Board for Scotland, for example. That is a standard power associated with NDPBs.
The Scottish ministers must exercise their powers reasonably. In doing so, they cannot contradict the RMA's statutory functions. In the management statement, the existing guidelines and the commitment given at stage 2, we have addressed properly the concerns that Roseanna Cunningham has articulated.
Amendment 12 agreed to.
Section 9—Implementation and review of risk management plans
Amendments 13 to 15 moved—[Hugh Henry]—and agreed to.
Section 13—Accounts and annual reports
Amendment 84 not moved.
Section 14—Victim statements
Amendment 85, in the name of Roseanna Cunningham, is grouped with amendments 86, 18 to 23 and 87 to 90.
The amendments to the section that deals with victim statements are part of a continuing debate about how those statements are to be used in court and how they will work in practice. There are a number of SNP amendments—85, 86, 87, 88, 89 and 90—which I will address in order.
The effect of amendment 85 would be to place a time limit, to be prescribed by ministers, for piloting the victim statement procedure. Thereafter, ministers may by order elect to continue to use victim statements, but we want to set a fixed time for the pilots so that there is a distinct point at which we will revisit the issue. In principle, it is right that the victim should have greater knowledge of, and a greater say in, what happens in his or her case—we all agree with that—but if the basic requirements of justice are to be met, it is also right that victim statements be examined in a pilot.
It is also appropriate that the legislation that would introduce the pilot should make it plain that it is a pilot, and that Parliament should, at the end of that pilot, have a proper chance to consider any potential expansion of the scheme. Children's hearings for 16 and 17-year-olds were specifically called pilots in the bill before the Executive removed them by amendment at stage 2. It is interesting that the section on victim statements is not written in such specific terms.
We all know that there are difficulties with victim statements, some of which amendment 86 seeks to deal with. What is the status of a victim statement? Is it evidence? If not, what is it? If the statement is made before the verdict, will the defence be allowed to examine it for consistency with the Crown case? If it is made after a guilty verdict, but it is inconsistent with the Crown case, what will happen? Will a victim statement constitute new evidence for the defence to use to seek a retrial? If the court must have regard to victim statements in sentencing, how will that relate to the sentence that is imposed? The Minister for Justice states that it is not intended that the victim will have a direct say in sentencing, but that leads to the question about what say the victim will have. There is a need for clarity for the likely participants in the process, including social workers and lawyers.
Another consideration will be the age of the victim statement—I do not mean the age of the victim, but when the victim statement was taken. How current is the statement in reality? Will it have more influence on sentencing if it is made near the time when the offence was committed, or if it is made nearer the time of sentencing? It is regrettable that, in our courts, there can be quite a long time between the two.
What happens to a victim statement if the court accepts a reduced plea, or if the accused is convicted on a lesser charge? What crimes are likely to elicit a victim statement? I realise I am asking a list of questions, but they must be answered if we are to be clear about the use of victim statements in court. Although we all agree that we want victim statements to be brought in, we need some clarity about what their introduction will mean.
Will it be difficult for some victims to make such statements? We should also take on board the fact that some victims might not feel that they can make such statements. Will they be penalised in some way because they have been unable to make such a statement? Will victims be under pressure to make the statements? There is a lot of concern about such questions and we need more clarity, which is why we are suggesting that some time limits be imposed. Many other questions can be asked, but I dare say that other members will ask a number of them.
Amendment 86 is a probing amendment that deals with further problems relating to cross-examination. Apparently, the Minister for Justice believes that a victim may be cross-examined under existing procedure regarding victim statements. All sorts of issues arise about the effect of such cross-examination on a victim—questions are being asked about whether the statement should be withheld from the defence. Cross-examination on proof and mitigation is extremely rare now, but I wonder whether the introduction of victim impact statements might open that up a great deal more than has been the case in the past. Many matters in victim statements might be completely irrelevant, so there is a question about how such information will be handled.
My other amendments are amendments 87, 88 and 89. I understand that the minister intends to accept amendments 88 and 89. If I am correct about that, I will not speak to them in detail. Amendment 87 would make it possible for informal carers, such as neighbours, to make victim statements. Although it is a rather broad amendment, it seeks to deal with the situation in which an informal carer has a strong relationship with a child victim. We saw that in the recent case of Chloe Bray, where an individual who had no formal relationship with the child had, in fact, brought her up for three years. Given the way in which the bill is drafted, the informal carer would be denied the opportunity to make a victim statement.
If amendments 88 and 89 are to be accepted, that is as much as I will say at the moment.
I move amendment 85.
Amendment 85, as Roseanna Cunningham said, seeks to insert an additional subsection into section 14 to include in the bill the provision that victim statements will be piloted for a specified period, and evaluated before a decision is made to extend such schemes. That would require the Scottish ministers to set out in secondary legislation the duration of the pilot schemes. I make it clear for the avoidance of doubt that it is the intention of ministers to pilot those schemes. Roseanna Cunningham was right to say that they should only proceed by way of pilots, because there are a number of issues. We have always said that it was our intention to pilot victim statements in two areas for two years, and to evaluate the pilots before we sought to extend victim statements.
It will already be possible under the provisions of the bill to establish pilot schemes. The bill includes a power in section 14(1) to prescribe in secondary legislation the courts, or class of court, in which victim statement schemes will operate. That means that we can prescribe only those courts in which we will pilot victim statements. Obviously, an order will have to be brought before the Parliament. That order will be subject to affirmative resolution. Before the pilot scheme can be implemented, an order will have to state the courts in which the pilots will take place, so members will have the opportunity to debate and vote on the proposed pilot areas. Similarly, any proposal to extend the victim statement scheme will be subject to affirmative resolution of the Parliament, so the Parliament will have the opportunity to debate the extension.
As I said, it is intended that we will pilot the scheme for two years. Amendment 85 would only oblige ministers to put into secondary legislation what we have already said we will do. The establishment of pilots will require Parliament to debate an affirmative order.
Roseanna Cunningham said that amendment 86 is, in some respects, a probing amendment that seeks to achieve three objectives by querying some of the provisions in the bill. The first is to require the prosecutor to provide a copy of the statement "forthwith … to the accused". I assume that that means upon receipt by the prosecutor of a victim statement, although that is not clear.
The second objective of amendment 86 is to clarify in the bill the existing right of the accused to cross-examine the victim on a victim statement. The third objective is to enable the judge or sheriff to require the jury to withdraw from the court during any cross-examination of the victim by the accused, if the victim statement is deemed not to be relevant to the charge brought against the accused. I will deal with those issues separately.
First, I will deal with the early provision of the statement to the accused. The status of the victim statement is important in relation to the early provision of the victim statement to the accused. Victim statements are not intended to be evidential documents. Their main purpose will be to give victims the opportunity to tell the court directly the way in which, and the degree to which, the offence or crime has affected or continues to affect them. Their introduction is a response to the concern that victims have expressed that they do not have a voice in the criminal justice process. The statement is intended to give victims that voice.
It is acknowledged that, occasionally, a victim statement might contain information that is of evidential value. In such circumstances, case law places a duty on the Crown to disclose to the defence evidence in its possession that would tend to exculpate the accused.
Roseanna Cunningham said that my amendments in the group might be inconsistent with an amended charge on which the accused might be found guilty. I have grave misgivings about introducing a requirement for the prosecutor immediately to provide the victim statement to the accused. In effect, that could mean that the accused had access to sensitive personal information about the victim before and during the trial. That information might not be relevant evidentially, but it could allow the victim to be cross-examined before the court on matters that were not relevant to the charge. That might make victims feel intimidated and pressured by the accused to update their statement.
Is not the relevancy or irrelevancy of evidence an issue for the judge to decide in court? The minister seems to suggest that our sheriffs and judges would allow irrelevant evidence; I do not think that that is the case.
Roseanna Cunningham almost turned back on me the argument that I was using, and have made previously, about sheriffs having a victim statement that contains information that contradicts, or is inconsistent with, the charge of which the accused has been found guilty. She has referred to that before now. In the past, I have said that sheriffs can discount information day in and day out, but for the avoidance of doubt, my amendments in the group will make that clear in the bill.
Of course sheriffs can rule out matters that do not relate to the substance of the charge, but exposing the victim to potential cross-examination could distress the victim. Roseanna Cunningham has raised a not unreasonable point, but having given the matter careful thought, we think that if the accused had access to such sensitive personal information about the victim before and during the trial, that might discourage or dissuade victims from making victim statements or put them under unnecessary pressure, although not necessarily in court.
I agree with what the minister says about amendment 86. Is the minister saying that the convicted person or their defence will never see the victim statement? Some confusion is felt about that, because when the Justice 2 Committee pressed ministers about the practicalities of victim statements, we understood that court proceedings would mean that the accused person or the defence had to see a victim statement. I would have thought that, under the requirements of the European convention on human rights, the accused person or the defence would have to be allowed to see a victim statement and the information that has been put before the judge. It would help if the minister clarified that once and for all.
I am certainly not saying that the defence or the accused will never see a victim statement. In the normal course of proceedings, the statement would be disclosed to the defence after conviction. If the Crown possessed a victim statement that included evidence that could benefit the accused, the Crown would be under a duty, under existing case law, to make that evidence available to the defence. However, a victim statement would not be given to the defence before the trial as a matter of course, which is what amendment 86 suggests.
In a case of domestic abuse, the victim might describe the effect on her—the victim would most likely be a woman. Even if that were not raised in court and the sheriff had no opportunity to challenge that or rule it irrelevant, the fact that the accused knew about information in the statement could mean that the accused could put some pressure, directly or indirectly, on the victim to update the statement or to withdraw comments that the victim might not want to withdraw. We want to prevent that kind of situation from arising.
Is the minister saying that the victim can be cross-examined on something that is in the victim statement if, in the view of the prosecutor, some of the information might be of relevance to the defence? Is he saying that, in that case, the information would have to be disclosed so that it could be raised during the course of a trial, but that otherwise none of the information would come out until the trial was over?
That is precisely what I am saying. Case law places a duty on the Crown to disclose evidence that is in its possession to the defence, if that evidence tends to exculpate the accused. If the statement is purely on the emotional, financial or even the physical impact of the offence on the accused, it would not be relevant to the charge and therefore should not be in the hands of the accused. The accused and their counsel would receive the victim statement post conviction, but before sentencing, and would have an opportunity to consider the statement then.
I might have missed something here; that would be entirely possible, given the size of the bill. What will happen when—post conviction—the prosecutor puts up a victim statement and the defence says, "Hang on, why wasn't that bit disclosed to us before, because in our view it should have been?"
I do not think that the Crown would in any way underestimate its duty. Something might emerge from a victim statement that could, in the same way as any other piece of evidence, form the grounds of an appeal, but that is highly speculative, because we are talking about personal information that relates to the impact of the crime on the victim. I am making it clear that such information would usually be disclosed to the defence post conviction.
Is the minister minded to consider existing arrangements where there is a dispute—post conviction, but prior to sentencing—in relation to the narration of the circumstances in which an offence had occurred, and the effects of that offence? The sheriff in some circumstances might order a hearing in mitigation in which any facts—challenged or unchallenged—might be explored in the event that there was a serious objection to the nature of the complaint.
In fairness, during evidence taking at stage 2, we said that it was possible that a hearing could take place post conviction if there were a serious challenge to information in the victim statement. It is my understanding—I asked about this again yesterday—that that has never happened south of the border, where victim statements have been in place for a considerable time. In theory, it could happen, subject to section 14A of the bill, which would
"prohibit personal conduct of defence … in certain sexual offences."
That brings the bill into line with what Parliament has passed in the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. There could not be a circumstance in which the accused was in direct cross-examination of the victim.
I am now becoming quite seriously concerned about the timetable, minister.
With respect, important issues have been raised and I am trying to address them.
I turn to the matter of the court requiring the jury to withdraw. If members agree with the position in relation to the first two objectives of amendment 86, the information in relation to the victim statement becomes relevant only to the third objective where it includes evidential materials. I see no good reason why a jury should have to withdraw. The jury is there to determine the facts of the case, so it makes no sense to have a provision that will allow questioning of factual information without the presence of the jury. Furthermore, if there is to be a cross-examination on relevant evidential matters, I question why the jury should not hear it.
I turn to amendments 18 to 23, which seek to clarify the role of the court whereby it is to have regard to only the information in the victim statement that is relevant to the charges of which the accused has been convicted. The victim may make the statement when proceedings are to be taken. That means that, if the accused has been tried on a number of charges but convicted of only some of them, it is likely that the victim statement will contain information that relates to a charge, or to part of a charge, of which the accused has been acquitted. Amendments 18 to 23 will clarify the court's duty in determining sentence. I hope that they will alleviate the concerns that the Justice 2 Committee expressed at stage 2.
Amendment 87 seeks to insert a further category of person who could make a victim statement; that is, a person who had charge of, or control over, a child. We believe that amendment 87 goes too far, because it could include people who were not employees, but who worked with children on a voluntary basis, such as neighbours or scout masters. It is not appropriate to give such people the right to make a victim statement.
As Roseanna Cunningham said, we wish to accept amendments 88 and 89, which are helpful. They relate to circumstances in which there is a de facto parent-child relationship.
Amendment 90 seeks to remove victim statements altogether. In 2001, the Executive stated its intention to pilot a scheme that would examine how the views of victims could be taken into account. That commitment was made in response to a need that had been expressed by victims and the families of murder victims who felt that they did not have a direct voice within the criminal justice process. The issue has been dealt with in considerable detail during the progress of the bill. Given that the Parliament endorsed the earlier strategy, I hope that it will be minded to keep such important provisions in the bill, which has been improved by amendments.
Amendment 90 seeks to remove the section on victim statements, but I hope that I will not have to move it. I lodged the amendment because the Executive has been confused about the purpose and effect of victim statements throughout the process. We were supposed to have clarification at stage 3, but I am more minded to move amendment 90 than I was before we started stage 3, because the minister has shown that he is still confused about the purpose of victim statements. His exchange with Roseanna Cunningham made it clear that the proposal is only half thought out.
The progress group is considering the way in which victim statements could be implemented. Some of the issues that it has come up with are the same as those that the Justice 2 Committee raised. The matter is still being discussed, but such discussion should have been held before we thought about implementing such a scheme. We should not pass the bill and hope for the best.
I return to what was said at the start of the debate. Everyone agrees that we want to give victims a voice and let them know that their voice will be heard in the criminal justice system. Although the minister expressed that desire, he did not tell us what the purpose of victim statements is. The bill's explanatory notes identify a twin purpose: the first is that victim statements will have an impact on sentencing, the extent of which has not yet been defined; and the second is that the knowledge that their voice is being heard will be of therapeutic value to victims.
The minister will remember our discussions at stage 2, at which it was not made clear whether victim statements were meant to have a material impact on sentencing—in other words, whether they would change or add to a sentence. The danger of not making that clear is that the victim might expect that their victim statement would lead to a stronger and stiffer sentence. However, the reverse would be the case and the victims would be disappointed; victim statements would make things worse for the victim.
As the therapeutic value of victim statements rests on the victim's being able to see justice being done, the victim might well come out of the process less satisfied than if he or she had not been able to make such a statement. That is what some of the evidence—most important, an article that was entitled "Victim Impact Statements: Don't Work, Can't Work"—that the Justice 2 Committee received at stage 2 suggested. We need a great deal more clarity from the minister before we can support victim statements.
Cross-examination, which the progress group has already expressed concern about, has been mentioned. Victim statements raise the possibility that the victim will be cross-examined on their statement at a later stage. The victim would go through the process in court not just once, but twice. Would that be to the advantage of the victim? Would it make the system better and more inclusive? I do not believe that such a system would be better than the one that we have.
At face value, victim statements are an attractive idea, but we are in danger of raising expectations that will not merely not be met, but might be dashed. Victims' expectations will not be fulfilled.
We have discussed the question of what happens with conflicting evidence, but I do not believe we have had a great deal of clarity on the matter. We are not sure from what the minister said at which stage in the process possibly contradictory evidence in the victim's statement would come in. If, as the minister suggested, it would come in during the trial, or it were up to the prosecutor to make that evidence available, would that mean that the whole statement would be available? If the statement were not made available, would that provide grounds for appeal on the basis that it should have been made available? Those questions need to be answered by the minister today. This is not a stage 1 debate after which we will have more time: it is the final stage of the legislative process. If the minister is not at this stage clear, I do not, to be frank, know how the measure can be passed.
The debate thus far has encapsulated the problems that can be envisaged. My principal concern—shared by Duncan Hamilton—is that it has not been clear at any stage of the debate what the intentions are behind victim statements. Are they meant to impact upon sentencing? If so, there will be difficulties under a number of headings: the same type of offence might affect different people in different ways; some people are more articulate than others in expressing how a particular offence has affected them; and the degree of trauma that might be experienced by different persons as a result of the same offence might be quite different.
Inevitable difficulties will arise when a statement is made prior to either a plea's being accepted for a reduced indictment, or where the jury returns a verdict that is inconsistent with that statement.
On the other hand, there is a compelling argument that the giving of such a statement will have a therapeutic affect on the victim in general terms. After all, the victim is the most important person in the equation. Conversely, some witnesses might find the giving of a statement troubling, but on balance—it is a fine balance—we are prepared to go with what the Executive proposes today.
Roseanna Cunningham's amendment 85 has been dealt with. It proposes that provision for victim statements be made on a trial basis; we would not be content to vote for victim statements it they were not to be introduced on a trial basis.
Amendment 86 deals, to some extent, with the contradictory material that might be introduced. The interests of justice demand that the terms of a victim statement would have to be tested.
We do not object to anything in amendments 88 and 89, which I understand have been accepted and, although I appreciate that amendment 90, in the name of Duncan Hamilton, is not likely to succeed, the points that he raised are valid and must be considered deeply. It is on a narrow balance that we are prepared to support the proposals.
At this point, I must suspend the debate and move to the next item of business. The conclusion of the debate will take place when we resume this afternoon.