Criminal Cases (Punishment and Review) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S4M-02617, in the name of Kenny MacAskill, on the Criminal Cases (Punishment and Review) (Scotland) Bill.
I will give members a few moments to change their seats. [Interruption.]
It would appear that we have a problem with Mr MacAskill’s card. Can we do something about the sound? [Interruption.] Thank you.
I call Mr MacAskill to speak to and move the motion. You have 13 minutes, Mr MacAskill.
14:57
Thank you for your forbearance, Presiding Officer.
I thank the Justice Committee for its careful stage 1 scrutiny of the Criminal Cases (Punishment and Review) (Scotland) Bill and I welcome the committee’s support for the bill’s general principles.
The bill deals with two discrete topics. Part 1 addresses an anomaly that has arisen with regard to the setting of the punishment part of non-mandatory life sentences by the courts. Part 2 provides a framework within which the Scottish Criminal Cases Review Commission can consider whether it is appropriate to disclose information that it holds relating to cases that it has referred to the appeal court, where the appeal has subsequently been abandoned. Although there is not a direct link between the two parts of the bill, we are legislating in those two general areas for essentially the same underlying reason: so that the public can continue to have full confidence in the processes of Scotland’s justice system.
Whether it is ensuring that offenders convicted of serious crimes are able to be sentenced appropriately by the courts or being as open and transparent as possible about all aspects of the al-Megrahi case, the Government is committed to doing everything that we can to ensure that the public can have confidence that we have a justice system that is fair, transparent and effective.
Part 1 is a direct response to a March 2011 appeal court judgment that concerned the setting of the punishment part of non-mandatory life sentences. The punishment part of a sentence is the length of time that a prisoner must serve before becoming eligible for parole. Although that judgment, known as the Petch and Foye case, affected only a small number of sentencing cases, with only around 75 offenders having been given non-mandatory life sentences in the past six years, the Government wanted to act quickly and appropriately to remedy the problem that the judgment raised.
As a result of the judgment, a number of offenders have successfully appealed and had the punishment part of their non-mandatory life sentence reduced. The judgment has produced what the appeal court noted was the anomalous result that some life prisoners may become eligible for parole at an earlier point in their sentence than would have been the case if they had been given a fixed or determinate sentence for the same offence.
It is important to emphasise that the Petch and Foye judgment did not and does not mean that serious offenders will be directly released early from prison. Any offender whose punishment part has been reduced will still need to satisfy the Parole Board for Scotland that they do not present a risk to public safety. If the Parole Board is not satisfied, the offender remains in prison and in custody.
Nonetheless, I am sure that we all agree that it is wrong in principle that our courts do not have sufficient discretion in law to avoid the anomalous result that some life prisoners may become eligible for parole at an earlier point in their sentence than would have been the case if they had been given a fixed sentence for the same offence. That is not what the law meant and it is, presumably, not what the sheriff who sentenced the offender meant.
Therefore, we are giving back to the courts appropriate discretion so that they can set a punishment part of a non-mandatory life sentence to satisfy the need for punishment of the offender.
We are aware that there has been some criticism of the provisions on the grounds that they are too complicated. We accept that the provisions are complex. That goes with the nature of the legislation and the terrain with which we are dealing. However, we do not think that they are unnecessarily complicated.
It is important to remember that our provisions exist within the context of European convention on human rights and domestic case law, as well as the framework of existing Scottish legislation.
I am interested in the cabinet secretary’s view on whether a less complex approach could have been taken had the bill been a bit more ambitious in scope. In other words, had there been more fundamental changes to the sentencing structures, it might have been possible to avoid an opaque proposal in part 1 of the bill.
That is not the case. There are two separate matters. The Petch and Foye judgment caused considerable concern and was commented on not only by me but by justice spokespeople from all parties. There was significant public concern that must be addressed.
In the bill, we address two specific matters: the Petch and Foye judgment, and a matter that relates to the Scottish Criminal Cases Review Commission. There is a time and a place for further legislation, and I have had discussions about that with Opposition members. The bill should not be viewed as an opportunity to make significant change; that will have to come in other legislation. Part 1 of the bill is about doing what is appropriate to resolve an issue that arose as a result of a court of appeal decision.
Although the matter is complex, the proposal is not unnecessarily so. We have been open to those who complain and suggest that there is an alternative and better position but, so far, we have received nothing. By providing a clear statutory framework within which judges must calculate the punishment part of a non-mandatory life sentence, we are making the law clearer and reducing the risk that sentencing decisions will be overturned on appeal.
Part 2 provides a framework within which the Scottish Criminal Cases Review Commission can consider whether it is appropriate to disclose information that it holds relating to cases that it has referred to the appeal court if the appeal is subsequently abandoned.
Although the provisions are general, members will be well aware that we introduced them to address the situation that had arisen with the statement of reasons in the al-Megrahi case.
The chamber will be aware that, late last month, the Sunday Herald published the commission’s statement of reasons for referring Mr al-Megrahi’s case to the appeal court. Although any urgency in passing these provisions might have diminished as a result, we are pleased that the Justice Committee supports our position that there should be as much openness as possible in relation to abandoned appeals arising from a reference from the SCCRC where there is a substantial public interest.
Notwithstanding recent events, we are proposing a general framework that might have application in other cases in future. To be fair, we should remember that, in the 13 years that it has been in existence, the commission has referred to court only three cases where an appeal has been abandoned, one of which is of course the al-Megrahi case. Although it is ultimately a matter for the commission, we understand from the commission that, in the other two cases, disclosure of information is not thought likely to be appropriate. However, we simply do not know whether other cases in future will give rise to the considerations that have occurred in the al-Megrahi case.
As our response to the stage 1 report makes clear, we consider that our framework for disclosure of information is robust and that, as it has not been narrowly designed simply for the circumstances of the al-Megrahi case, it can be applied in a range of relevant cases. We cannot speculate on such matters but at least we will have a framework to address any such case that might arise.
It is worth pausing to remind ourselves why the framework was thought necessary in the first place. In the normal course of events, the material in the commission’s statement of reasons in the al-Megrahi case could have been tested in court. However, as members will be aware, Mr al-Megrahi chose to drop his appeal in February 2009. Given the exceptional level of wider public interest in the al-Megrahi case, we have consistently done all that we can within the devolved powers of the Scottish Parliament to facilitate the commission’s release of the statement of reasons.
During stage 1, the question of how the commission could comply with data protection laws to help enable publication of the statement of reasons in the al-Megrahi case was discussed. Although events might have rendered the question moot in the case of Mr al-Megrahi, it would be helpful to explain how data protection will apply in the consideration of disclosure of information in future cases.
Does the cabinet secretary accept that it would have been helpful to have consulted the information commissioner at a much earlier stage in order to resolve some of these issues more quickly?
It was not up to us to consult the information commissioner, because these matters have to be dealt with by the SCCRC. We have always sought to facilitate everything necessary for the commission to deal with such issues, but the commission itself is required to instigate them. As Mr Chisholm will be well aware, neither I nor the First Minister—nor, indeed, any other member of Government—had ever seen the statement of reasons, and I can only assume that, as the SCCRC has indicated, what it said in what has been published was correct.
We have gone out of our way to facilitate and assist the commission; indeed, I believe that the Information Commissioner’s Office has met the SCCRC. We have certainly sought to facilitate such an approach. As an Administration, we should always seek to facilitate matters, which is what we have done, but ultimately these are matters for the commission. I have already paid tribute to the assistance of the Lord Chancellor south of the border and pay tribute now to the information commissioner. People have been working together to ensure that we address these issues.
Following a constructive meeting in March between officials from the SCCRC, the Information Commissioner’s Office, the Scottish Government and the United Kingdom Government, the SCCRC is considering whether it would be able to comply with data protection requirements in publishing sensitive personal data contained in the statement of reasons on the basis that such processing could be said to be necessary for the administration of justice. As such, the commission could comply with a necessary data protection condition for publishing such information.
It is ultimately a matter for the commission to be satisfied that it can comply with data protection legislation. Notwithstanding recent events, it is carefully considering those matters.
We are committed to ensuring that the framework is as robust as it can be in enabling the commission to consider disclosing information. In particular, we are considering the point that was raised with the Justice Committee concerning information that is subject to legal professional privilege and whether further provision is necessary in that area.
We brought the bill forward quickly to ensure that appropriate action is taken to address concerns that have been expressed in two important areas of our justice system. If it is approved today at stage 1, we will continue to work with members and the Parliament through the rest of the parliamentary scrutiny process to ensure that it fully meets our policy aims.
I move,
That the Parliament agrees to the general principles of the Criminal Cases (Punishment and Review) (Scotland) Bill.
I call Christine Grahame to speak to the motion on behalf of the Justice Committee.
15:11
I welcome the opportunity to open the debate on behalf of the Justice Committee—at least, that is what it says here. I thank all those who gave evidence to the committee on what, is in football parlance—as I understand it—a bill of two halves. There could continue to be issues about conjoining distinctly separate pieces of legislation in one bill. The practice has an established history in that other legislature and we seem to have adopted it over the past 13 years, but it is perhaps not the best practice.
As a result, the evidence-taking sessions were in two distinct categories: the Petch and Foye group and the Megrahi group—I am using shorthand. I will therefore deal with the bill in those two distinct parts. I thank all the witnesses for their time and contributions
First, I will comment on part 1. I take a deep breath, because this is tricky stuff. I commend the committee members and indeed myself for struggling week in, week out to understand the solution to the Petch and Foye problem—I stress the solution, not the problem.
First, what is the problem? I know that my learned friend Rod Campbell will do a far better job than me of describing it, although he might kill me for saying that. I will repeat to some extent what the cabinet secretary said. In 2011, the appeal court by a majority ruled that convicted sex offenders Messrs Petch and Foye, because of an anomaly in the law, could become eligible for parole earlier than someone who was serving a mandatory life sentence.
By way of explanation, class, there is the mandatory life sentence for murder, and the determinate sentence and the discretionary sentence for other serious offences short of murder. The problem lies with the discretionary sentence, which comprises a punishment element and an element for protection of the public. Eligibility for parole relates only to the punishment part, and it kicks in after 50 per cent of the punishment part has been served. If a large chunk of the discretionary sentence is for protection of the public, we could have, as in Petch and Foye, serious sex offenders applying for parole earlier than someone on a determinate sentence.
The problem is the solution on offer to the committee, which we found overly complex and which is one big headache, not just for me and members of the public but, I have to say, for some practitioners, including a Queen’s counsel who gave evidence. Am I embarrassed to admit a degree of defeat? Not in the least. Although I am mindful that I speak for the committee, I think that it is fair to say that we all struggled with the bill. To be frank, some committee meetings had the flavour of a final-year law tutorial. Even the question-and-answer page on the bill on the Government’s website states:
“This is a very complex area of law.”
The Petch and Foye ruling was by a five to two majority and the appeal court was not able to agree the terms of the judgment, so I am in good company.
I will take another deep breath. Sit up straight, class. Here are some working examples. For ease of consumption, I have colour coded them. Members will be tested later. The first example concerns the mandatory life sentence. John Black is convicted of murder following a fight outside a bar and, as required by law, he is given a mandatory life sentence. After taking into account the seriousness of the offence, any previous convictions and whether there has been an early guilty plea, the court says that John Black must serve at least 20 years in prison before he is eligible for parole. We know the score—it is 20 years.
Now I move to the determinate life sentence. John Brown is convicted of serious assault following a fight outside a bar. He escapes a murder charge simply because of the speed of the ambulance and the skills of the surgeon. He is therefore not charged with murder and is convicted of a serious assault to the danger of life, which does not attract a mandatory life sentence. He is given a determinate sentence of 20 years to reflect the gravity of the crime, but he will be eligible to apply for parole after 10 years, and he must be released after serving two thirds of his sentence. That is how determinate sentencing works, by the way: a 20-year sentence does not mean 20 years in prison; it means 16-ish years.
I hope that members are still with me as I move on to the non-mandatory life sentence. John Red is convicted of a similar crime of serious assault following a fight outside a bar. However, the court considers that the pattern of behaviour that he has demonstrated means that there is a likelihood that, if he is at liberty, he will be a danger to the public. He is therefore given a non-mandatory life sentence, which effectively means that, even when he is eligible to apply for parole halfway through his sentence, he will be released only if the Parole Board considers that he is no longer a risk to the public. He cannot be released automatically after he has served two thirds of his sentence.
It is when calculating the punishment part of John Green’s sentence that things get tricky. Let us say that Mr Green gets 20 years, but five of those are for public protection. We do not need a calculator—perhaps we do by this stage—to calculate that eligibility to apply for parole is at half of 15 years, not half of 20 years. Mr Green would be eligible for release after seven and a half years, not 10. That is the anomaly. I think that I am understanding this.
Members should remember John Black, John Brown and John Red—I will give members a test when they are leaving the chamber. For further working examples on the problem, I direct members to the Government’s website because I have run out of codeine. I do not, however, fault the Government, because the appeal court’s decision compelled legislative intervention.
To cut to the chase, why make a complex area more complex? I give the suggestion of the Law Society of Scotland and the Faculty of Advocates, on which the committee remarks in our conclusion at paragraph 94 of our report. We were attracted to the simplicity of a less prescriptive approach of enshrining in the proposed legislation a principle that a discretionary life prisoner, such as our Mr John Red, should never be able to apply for parole earlier than a non-mandatory lifer such as Mr Brown. I say gently to the cabinet secretary that if there had been a formal consultation on part 1—although I hear what he is saying about what has happened subsequently—simpler solutions would have been on offer such as those that were presented to us.
It is undeniable that, although part 2 was drafted in general terms, it was proposed to enable publication of the SCCRC’s statement of reasons in the case of Abdelbaset al-Megrahi. At this point, Presiding Officer, I declare an interest as a member of the Justice for Megrahi campaign.
Having exposed the difficulties of part 1, I now have to repeat the difficulties that arise with part 2 in particular because of the marriage of disparate pieces of legislation. This is not the first time that I have had to raise such issues.
Notwithstanding the fact that all the evidence that we took was directed at the al-Megrahi case and the fact that, on 25 March, the Sunday Herald published most of the statement of reasons, part 2 cannot now be detached from part 1, even if someone wanted to do so. Indeed, I give notice as convener of the Justice Committee that if an attempt was made to lodge an amendment to delete part 2, I would reject it as a wrecking amendment and therefore incompetent. Of course, such an amendment could be re-presented at stage 3, but that would be a matter for the Presiding Officer. To some extent, it is a fiction to say that part 2 will have general application, but there is an issue around whether it is robust enough to do its job in general circumstances and not just in relation to such a high-profile case.
There was a fair bit of to-ing and fro-ing, which might have looked like “Blankety Blank”, between the Scottish Government and the UK Government’s Information Commissioner’s Office with regard to the restrictions that the Data Protection Act 1998 might impose on publication of the statement of reasons. That turned out to be a bit of a red herring because, at the end of the day, the UK institutions appeared to be pretty relaxed about publication. I suggest that that progress was made because of the pressure that the committee put on the Government. That approach might prove to be useful should such intergovernmental co-operation be required again, although this might have been a special case.
That was my executive summary. The bill has two parts: I can sum up by saying that part 1 is overcomplex and part 2 is perhaps redundant. That is not the cabinet secretary’s fault but, as has been said before and will no doubt be said again, we are where we are.
Now, as the tumbleweed gathers round my ankles, I leave the floor to the other committee members. I have run out of codeine, but I have spare supplies of aspirin.
Before I forget, I point out that, in spite of all the aforesaid, the committee supports the general principles of the bill. As a caveat, I remind the cabinet secretary that I speak as convener of the committee, not as a Scottish National Party back bencher—I am not looking to build a case for a by-election in my constituency.
15:20
Alongside other committee members who are present, I had the opportunity to scrutinise the bill closely as it passed through the Justice Committee. I want to take some time to reflect on not just the principles of the bill, but its substance. A great range of views have been expressed on what is a complex bill, as the Justice Committee convener has set out. It is important that those views are aired in the chamber from the outset.
The most important thing in the scrutiny process is that we take the time to get the bill right, which means right for the victims of crime, for the courts and their procedures and for those who are sentenced in our courts. Our justice system is built on the foundations of justice, compassion and integrity, which are the benchmarks against which we as lawmakers should measure any bill that comes before the Parliament. On justice, does the bill get it right for the victims of crime? On compassion, will the bill ensure that justice is proportionate? On integrity, will the bill work effectively in our justice system?
In analysing the reasons behind the bill, we find that its principles go hand in hand with those that underpin our system. Part 1 seeks to rectify an anomaly in the law that has led to a method of sentencing that has been seen to jeopardise the principles of integrity and justice. As we have heard, through the case of Petch and Foye, sentencing in non-mandatory life sentences, including orders for lifelong restriction, have been subject to interpretation that has resulted in sentences being reduced to a point at which offenders will be considered by the Parole Board for Scotland earlier than they might otherwise have been. As a result, there is an element of doubt and confusion, not only among victims and the wider public, but among the legal profession, as the convener pointed out.
Put simply, the bill seeks to address the anomaly by reinstating to judges discretion to hand down sentences that are deemed appropriate in each case. In doing so, the bill seeks to restore integrity in the system as well as a sense of fairness and confidence in the eyes of victims and their families that offenders are being sentenced correctly for the crimes that they commit. Introducing legislation that ensures that courts can sentence dangerous and violent offenders appropriately and in compliance with human rights can only be a good thing. However, we can act on that principle only if the bill that is drafted to rectify the problem is clear, coherent and effective.
As the convener explained, the evidence sessions in the Justice Committee on part 1 of the bill were mired in uncertainty among committee members and witnesses. Most important, there is no consensus that the bill will build confidence in our justice system. There is still an opinion that people who come to the court to be sentenced as well as victims and their families are still confused by the sentencing rules in this country, and there is further confusion not just among committee members, but among qualified and experienced legal professionals.
I will give just one example. Back in January, when the committee first took evidence on the bill, James Wolffe QC stated:
“The approach that is taken in the amendments to existing legislation that are in the bill is to take an already complex piece of legislation and make it even more complex.”
He went on to say:
“sentencing judges are expected to explain sentences in a way that will be intelligible not only to the accused who is being punished and sentenced, but to the victims of the crime, the public at large and, ultimately, the appeal court. It is open to question, at least, whether provisions of such complexity will be helpful to sentencing judges in the task that they must carry out”.—[Official Report, Justice Committee, 31 January 2012; c 864-5.]
I share the concerns of Mr Wolffe and others who have given evidence on the bill and who have noted the wider implications for victims, the public and the appeal court, making a complex process even more so. At this stage of the parliamentary process on the bill, I urge the cabinet secretary to take evidence from other European countries on how they manage to integrate the ECHR compliance in this form of sentence. Perhaps Scotland can learn lessons from other jurisdictions where there is more clarity.
There are similar concerns about part 2. While noting the good intention behind the bill, contributors to the Justice Committee’s evidence sessions have aired very different opinions on how effective part 2 will be in addressing the issues that it seeks to rectify. Len Murray from the Justice for Megrahi group described the bill as
“a sledgehammer to crack a fairly small walnut.”—[Official Report, Justice Committee, 7 February 2012; c 900.]
That appears to have been substantiated by the publication in a well-known Sunday newspaper of the statement of reasons a couple of weeks ago. Although the convener of the Justice Committee and indeed the First Minister himself appeared on television to welcome its publication, questions were undoubtedly raised about the competence and necessity of part 2.
It is integral to public confidence that the Government should produce legislation that is necessary and effective. Although out of the Scottish Government’s hands, that process was undermined by a Sunday newspaper’s publication of the statement of reasons.
Does the member accept that part 2 of the bill has a wider application than just Mr al-Megrahi’s case?
John Finnie may, like me, hope that part 2 will have a wider implication in future, although it is difficult to predict when that might be. However, we will support the Government’s motion because we believe in the principles of the bill and that part 2 is necessary for transparency.
In committee, we heard the assistant commissioner from the ICO assert that data protection was no impediment to the statement’s release and there was correspondence from the justice minister, Ken Clarke, who asserted similarly, despite Mr MacAskill’s insistence to the contrary.
Of course, now superseded by the publication of the statement of reasons in the Sunday newspaper, this Government bill and the parliamentary process seem out of step with the public thirst for clarity and transparency on the Megrahi case, which is an important case for the Scottish judicial system.
Part of the problem with part 2 of the bill lies in the scope of the consultation that the Government chose to undertake prior to its drafting. Unusually, only one body, the Scottish Criminal Cases Review Commission, was consulted before the bill was given to the committee. Given the significant data protection issues that we explored, it might have been wiser for the Government to consult more widely to gain a fuller picture of the issues that subsequently arose in relation to part 2.
While we on the Labour benches are happy to support the Government’s motion, we do so with caution and a keen interest in the bill’s progress. The Government must ensure that both parts of the bill will work effectively when they are put into practice and that, in the eyes of the public, victims of crime and those within the legal system, the legislation meets the benchmarks of integrity, justice and compassion that underpin our legal system.
15:29
As other members have done, I speak as a member of the Justice Committee, which has had responsibility for scrutinising the bill, the first part of which was described to us as creating
“a tortuous system which is barely intelligible to lawyers, let alone to the general public”,
and the second part of which is now largely redundant due to the actions of a leading Scottish newspaper.
As we have heard, part 1 seeks to address a complex anomaly in sentencing law that was identified in the Petch and Foye case. As a result of that judgment, prisoners who are given a discretionary life sentence or order for lifelong restriction can apply to become eligible for parole at an earlier stage in their sentence than prisoners who are serving sentences that are of fixed length. That is clearly inappropriate.
In the case of Petch and Foye v Her Majesty’s Advocate, the High Court ruled that a sentencing court should adopt a three-step approach to calculating the punishment part for a non-mandatory life sentence—that is, the period after which a prisoner who is serving a life sentence can become eligible for parole. The court concluded that the result of that complex staged calculation was that an individual who has been given an indeterminate life sentence may become eligible for consideration for parole at an earlier stage in their sentence than if they had been given an equivalent determinate sentence. That is not as crystal clear as Christine Grahame’s exposition of the matter, but it is my poor and humble best shot.
I add two caveats to the support that we give to part 1. First, it became clear that this area of the law is complex. A number of witnesses raised concern that the Government’s solution to the Petch and Foye anomaly risked making an already complex set of rules even more complex. Joanna Cherry QC, who appeared as an advocate depute in the Petch and Foye case, said that analysis of the current rules
“gave rise to the most difficult piece of statutory interpretation”—[Official Report, Justice Committee, 31 January 2012; c 865.]
of her career, and there was clear concern among some witnesses that the bill could make matters less rather than more intelligible.
Secondly, much of this could have been avoided if the Scottish National Party was better at implementing its own manifesto commitments. The Petch and Foye case is yet further evidence of the need to end automatic early release from prison. The Parliament legislated, via the Custodial Sentences and Weapons (Scotland) Act 2007, to end automatic early release, but the act has yet to be implemented.
We and others have repeatedly called for the ending of automatic early release, and have for many years argued that the custodial sentence that is handed down should be the sentence that is served. In fairness, the SNP also claims to be in favour of abolishing automatic early release—indeed, it pledged to do so in both its 2007 and 2011 manifestos, but it has manifestly failed to take any meaningful action towards doing so. It appears that the Government’s fondness for delay in the implementation of its manifesto pledges is not restricted to the independence referendum.
Does the member accept that the Government’s position remains that the manifesto commitment will be implemented once the terms of the McLeish commission are met?
Yes—I accept that that is the position, but that is a cover-up for not implementing anything, as Mr Finnie will realise, the longer he serves in this Parliament.
As members have said, part 2 has largely been superseded by events. Shortly before the publication of the committee’s stage 1 report, the statement of reasons was published in a leading Scottish newspaper. The newspaper said that it had published the statement because it had received al-Megrahi’s permission to do so and because it was in the public interest. That followed a letter from the Lord Advocate to the chief executive of the Scottish Criminal Cases Review Commission on 23 March confirming that no employee of the commission would be prosecuted if the statement were to be formally published. The Lord Advocate has since confirmed in a letter to me that there is no specific criminal offence applying to unauthorised publication of the statement of reasons by anyone.
It is now clear that al-Megrahi and his legal team could have published the statement of reasons at any time after the abandonment of his appeal in 2009—after he was safely tucked up in Libya courtesy of Mr MacAskill. The question is, why did he not do so? Why has it taken him and his advisers nearly three years to do something that was entirely within his power and for which he needed permission from no one?
Those developments raise an important point about the Scottish Government’s approach to the al-Megrahi case. The Government’s initial position was that publication of the statement of reasons would be impeded by data protection restrictions, which are a reserved matter. The cabinet secretary told us as recently as 29 February that he had written four times to Kenneth Clarke, the Secretary of State for Justice, demanding the removal of “data protection obstacles”. However, we now know that data protection did not represent an obstacle at all.
Written and oral evidence that the committee received from the Information Commissioner’s Office maintained that the bill would allow disclosure of the statement of reasons and that no data protection restrictions would prevent that. Once Scottish Government officials belatedly joined discussions on the matter with the Scottish Criminal Cases Review Commission and the UK Ministry of Justice, the Scottish Government was forced to acknowledge that what had been said was the case. For confirmation of that, I refer members to Mr MacAskill’s letter of 16 March to the committee, in which he meekly advised us that no Westminster legislation was needed.
It is fortunate for Mr MacAskill that part 2 is largely a dead letter because, as with his impetuous behaviour over the Supreme Court last year, he was far too quick to use the bill as an excuse to grandstand and demand from the UK Government something that ultimately turned out to be totally unnecessary. I am afraid that that tells us everything that we need to know about him and the SNP.
15:36
I will concentrate on part 1 of the bill—the easy bit. We know that part 1 resulted from the much-talked-about Petch and Foye case. As we have heard, part 1 relates to the time that prisoners who are given a discretionary life sentence or an order for lifelong restriction must serve before becoming eligible for parole.
We have heard from various sources that the bill is complex but not unintelligible. We need to bear in mind the practitioners who will use the act. The people who will impose discretionary life sentences and orders for lifelong restriction are perhaps better placed than I am to understand the complexities. We know that the subject is complex and that the appeal court did not reach agreement on the terms of the judgment in the Petch and Foye case, which was decided by a majority of five to two.
Part 1 will introduce a clear framework for judges to calculate sentences and make the process easier to understand. Petch and Foye are two particularly unpleasant individuals. Petch was found guilty of two charges of rape and was given a discretionary life sentence. Foye pled guilty to a charge of rape and was given an order for lifelong restriction. Both appealed the punishment elements of the sentences. As we have heard on a number of occasions, the punishment part is the period that must be served before a prisoner is eligible for parole. In 2011, the appeal court ruled on the periods that Petch and Foye had to serve before being eligible for parole.
We have heard the situation being described as “an anomaly”. I do not know whether it is a simple or a complex anomaly, but it has certainly required a complex solution.
We heard from the Cabinet Secretary for Justice that approximately 75 people have been given discretionary life sentences in the past six years. The important point to note is that such people could become eligible for parole earlier than prisoners who have been given determinate sentences for like crimes. That comparison is important. However, as the cabinet secretary confirmed, that has posed no risk to the public, because the requirement to satisfy the Parole Board for Scotland about safety has remained.
Given that, people might say, “So what?” and ask whether the issue is important. It is extremely important. We have heard about the sort of crimes that draw a life sentence—they include murder and a few others. Courts must have the discretion to impose significant penalties. Non-mandatory life sentences and orders for lifelong restriction are given to the most dangerous offenders, who will be subject to varying degrees of monitoring and supervisory regimes for the remainder of their lives.
A recipient is given a non-mandatory life sentence not as a more severe punishment for their crime or offence but because the judge believes that they are likely to pose a high risk to public safety in the future. Persons who do not pose a high risk would receive a fixed determinate sentence. Given that, the fact that someone who is deemed to pose a risk to the public and who has been sentenced accordingly can be eligible for release ahead of someone who has received a fixed sentence for a similar crime is clearly wrong. The committee heard no evidence to the contrary on that.
We have heard that the Petch and Foye ruling removed judicial discretion. Part 1 will return that discretion and reduce the risk that decisions will be overturned on appeal.
Perhaps predictably, Mr McLetchie brought up sentencing law. A rewrite is not required. The bill is a specific response to a specific problem. As we have heard, it draws on ECHR, domestic law and the framework of existing legislation. The committee supported the aims of part 1.
I will try to outline a very simple version of the solution; it will not be as complex as the convener’s explanation. ECHR laws decree that non-mandatory life sentences are different from other types of sentences because, as we have heard, they are imposed by courts based on the assessed risk to public safety. The bill addresses the problem through providing a framework for the court to set the punishment part of non-mandatory life sentences.
The court must first assess the period of imprisonment that it considers would have been appropriate for the offence had the prisoner not been sentenced to life imprisonment or been the subject of an order for lifelong restriction. That period of imprisonment must ignore any period of confinement that may be necessary for the protection of the public. The court must then assess the part of that period of imprisonment that would represent an appropriate period to satisfy the requirements of retribution and deterrence—I do not think that we have heard those terms in the debate, but they are a component part of the sentencing regime in Scotland. The bill requires that that part of the period of imprisonment, which will be the punishment part, is to be either one half or a greater portion of that period specified, up to the entire period of imprisonment.
That is where judicial discretion kicks in, because between 50 and 100 per cent can be levied, provided that certain criteria are satisfied. The criteria, which exist already, relate to the seriousness of the offence or the offence being combined with other offences of which the prisoner is convicted on the same indictment, the offence being committed when the prisoner was serving a period of imprisonment for another offence and, understandably, any previous convictions.
The situation arises out of an anomaly—no one is to blame for it. Part 1 of the bill will remedy the problem and should enjoy full support.
I do not think that victims needs to understand the minutiae of sentencing law. They receive support from the Crown Office and Procurator Fiscal Service and from the victim information and advice service. We can all look forward to the implications of the bill and, more important, to the victims and witnesses bill that will be introduced in the future.
15:42
I note John Finnie’s light touch in describing part 1 as “the easy bit”. On that basis, I look forward to his forthcoming book, “A Treatise on Scots Law”, because there is no doubt that if he found part 1 easy to understand, it would be a fascinating book to read.
The Criminal Cases (Punishment and Review) (Scotland) Bill is one piece of legislation with a title that trips off the tongue. Members who have followed the committee’s deliberations will know the torrid time that we faced together in trying to understand the complexities that are involved in simplifying the process at solemn procedure when judges calculate the punishment part of a non-mandatory life sentence, which is dealt with in part 1.
It is satisfying to note that, nonetheless, the committee came to support the aims of part 1 in seeking to address the anomaly that was identified through Petch and Foye v HM Advocate in 2011, whereby a life prisoner is likely to have a parole hearing earlier than a non-life prisoner who has been sentenced for a similar crime.
During our committee meetings, witnesses said much that evidenced the unsatisfactory nature of current sentencing guidelines; indeed, the cabinet secretary himself acknowledged that the bill was meant to be an immediate fix to the Petch and Foye challenge and did not seek to address the structure of custodial sentencing more broadly. To that extent, the bill is disappointing in its ambitions. I hope that, as was alluded to by the cabinet secretary, the Government will consider further work in a reasonable timescale to address the wider issues affecting sentencing in order to ensure not only that judges can understand the procedures that are involved but—more important—that victims, witnesses and the general public can understand the system. I hope that the cabinet secretary will be able to address that outstanding matter.
I would like to see in the future the delivery of sentences that not only leave no doubt in the mind of the public about how a sentence is arrived at, but which announce the earliest date of release for a prisoner. That will give clarity and some comfort to people who are affected because they will be safe in the knowledge that an offender will not be on the streets in a free capacity before the said date.
Joanna Cherry QC said in her evidence to the committee that
“it is not just lay people who find the legislation extremely difficult to understand ... I am sure that it is an issue for the Parliament that legislation should be readily understandable to the public, particularly legislation to do with ... sentencing ... That is a strong factor in our concern about the bill’s complexity.”—[Official Report, Justice Committee, 31 January 2012; c 865.]
Sir Gerald Gordon QC echoed those sentiments when he acknowledged that even legal experts and members of the judiciary would struggle to understand all the provisions. Michael Meehan added that
“The bill complicates matters by requiring judges not only to consider the sentence that they will impose but to conduct a parallel notional sentence exercise.”—[Official Report, Justice Committee, 31 January 2012; c 866.]
Despite those reservations, I accept the authorities’ need to take steps to respond to the identified problem. In connection with that, I suggest that the cabinet secretary encourage the authorities to draw up an aide mémoire, written in everyday language, that is designed to explain to members of the public who are attending court exactly what the sentencing procedure is and how judges decide sentences. Such documentation would—alongside Victim Support and other agencies—assist people to understand the processes.
With regard to part 2, events in respect of Megrahi have overtaken the import of our discussions on the matter. Part 2 seeks to establish a framework for the Scottish Criminal Cases Review Commission and, as other members have outlined, we have a greater understanding of some of the perceived hurdles and the real pathways forward. Nevertheless, it is troubling to acknowledge that a reporter who is based at The Herald newspaper in Glasgow has greater latitude to manoeuvre to allow publication of a report from the Scottish Criminal Cases Review Commission than is available to the First Minister and his Government.
A subsequent update to legal advice has indicated that previous reservations with regard to data protection and other issues were ill-founded. Although it is difficult to identify a purpose for that part of the bill now, the Government continues to press for its enactment. I well understand, with regard to Christine Grahame’s contribution, the wrecking impact of our committee seeking to interfere with that process.
Nevertheless, it is useful to acknowledge that, during conversations in committee and in taking evidence, Len Murray, who is a highly respected lawyer, said that in his view the bill could create as many difficulties as it might solve, and Ian McKie commented that the current legislation and the bill as drafted would inhibit rather than assist the release of information. Both appeared before the committee as members of the justice for Megrahi campaign. Whatever their view, and the outcome, the SCCRC raised one practical issue regarding its ability to deal with financial costs. I hope that the Government will take account of that observation and respond to it in due course.
15:48
I refer members to my entry in the register of interests as a member of the Faculty of Advocates. One of the advantages of the recess is that it enables one to catch up with reading: I mean not light reading like Ian Rankin, but heavy reading of the decision in Petch and Foye.
It might help if we remind ourselves how we got here. A 1990 decision of the European Court of Human Rights held that discretionary life sentences that were imposed by English courts were composed of a punitive element and a security element. The ECHR concluded in that case that, once the punishment part had passed, an individual was entitled to regular reviews of his continued detention.
English legislation was passed in 1991 to deal with the situation, and contained in its provisions for the release of discretionary life prisoners a specific cross-reference to the provisions for release of long-term prisoners who had been sentenced to determinate terms. That is important in ECHR terms, but the 1993 legislation for Scotland did not—for whatever reason—contain that cross-reference.
However, in a 1999 High Court case—O’Neill v HM Advocate—the appeal court embarked on a clarification of the position by the exercise of constructing a notional determinate sentence that would be arrived at by deciding on the period of imprisonment that would have been appropriate purely for the purpose of punishment if a determinate sentence had been imposed, and then specifying a period of one half of that—or two thirds in exceptional circumstances—as the notional sentence that a prisoner would be required to serve before he could be released, if a determinate sentence had been imposed. That is in keeping with the statutory provisions for release on licence in the 1993 act. It is clear from the decision in the O’Neill case and, in particular, from the comments of the late Lord Rodger, that the court was aware of the potential difficulty that that posed, but the approach was arrived at with the overwhelming purpose of achieving comparative justice.
The Convention Rights (Compliance) (Scotland) Act 2001 was passed to give statutory force to the approach in the O’Neill case and makes it clear that no part of the punishment part should include any element that is necessary for protection of the public. The then Minister for Justice, Jim Wallace, indicated when moving an amendment to that bill that
“the court is required to take into account the period that a prisoner sentenced to a determinate sentence of that duration would have served before becoming eligible for release under the early release provisions that are set out in … section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.”—[Official Report, 30 May 2001; c 1091.]
However, by definition, one half of the sentence for a determinate sentence may in some cases include an element for protection of the public. That was the problem that was brought to a head in Petch and Foye; Christine Grahame talked about the majority decision in that regard.
In relation to the 2001 act, Lord Clarke stated, in a typically robust manner:
“It cannot, in my opinion, be seriously argued that the legislature had not appreciated this possible anomaly in passing the legislation in the terms it did, when the Lord Justice General had spelt it out so clearly in the judgment which the legislature was seeking to enshrine in the provisions in question.”
Whatever the deficiencies of the 2001 act, the Scottish Government is today seeking to rectify the problem.
Are the provisions in the bill too complex? Insofar as the bill provides for the court to set a minimum period of imprisonment for the non-mandatory life sentence at between half and all of the notional stripped-down punitive period, the anomaly will be removed. The bill will give discretion to judges in sentencing, but will also require judges to engage in a difficult exercise. As Michael Meehan of the Law Society of Scotland said, judges will have to consider, in relation to what is a relatively rare form of disposal, not only the discretionary life sentence but what they might have done had they gone down a different route, and compare the two. He went on to say that
“the exercises are different because, of course, the paramount consideration in cases with a discretionary life sentence is protection of the public.”—[Official Report, 31 January 2012; c 866.]
The Law Society made the important point that, except in a situation in which an extended sentence is imposed, the issue of protection of the public is not generally considered discretely by a sentencing judge when passing a determinate sentence.
The Scottish Government’s response is to accept that the provisions are complex but not unnecessarily complex in an undoubtedly complex area of law.
I note the Government’s comments on the value of a framework setting out the details of the rules that are to be applied by the sentencer, but I am also pleased to note that it would be happy to consider the precise terms of any specified alternative. Given that we are in what the Law Society implies is an artificial situation, if the aim is to give judges flexibility in sentencing in order to avoid the Petch and Foye anomaly, it seems paradoxical to do so in what has been described as a rigid, step-by-step way.
On double counting, the grounds on which the court may set a punishment part of a non-mandatory life sentence at more than one half of the notional equivalent determinate sentence, such as the seriousness of the offence and any previous convictions, are similar to the criteria that are used to determine the length of the overall notional determinate sentence. Is this double counting? Will it give rise to ECHR challenges? The Scottish Human Rights Commission sits on the fence. Although the Scottish Government’s position is that the criteria are to be applied for separate purposes—which I accept—there are two separate purposes within the overall sentencing framework.
The committee’s view was that the Government might have benefited from consulting more widely before introducing the proposals. Understandably, the Government has indicated that because this was not a new policy, and there was a need for swiftness in resolving the anomaly, it has got the balance right, particularly given the low response to the committee’s call for evidence. Again, it is hard to disagree, but I think that we have to accept that the scheme that is proposed has not generated much enthusiasm. Therefore, although I welcome this element of the bill, there remains scope for further consideration of its detail and for seeking help from stakeholders on consideration of whether there is any realistic alternative. Certainly, it is not helpful to criticize without alternatives.
Having perhaps been overly hasty in 2001, Parliament should endeavour to learn from that experience.
15:55
As a member of the Justice Committee, I, too, thank everybody who came forward and gave evidence on the bill.
There is a constant underlying theme in the debate. To say that members were at times bamboozled by part 1 would be an understatement. It was quite amusing to observe witnesses’ faces as members placed their hands in front of their faces and used their fingers to try to understand by way of practical example how sentencing was worked out. I am not looking at anyone in particular in the chamber, of course.
I am in the minority of Justice Committee members who do not have a legal or law-enforcement background.
Hear, hear.
Thank you. However, luckily, my wife studied law, which was very helpful to me. I have sympathy for Alison McInnes and for Colin Keir—who has disappeared from the chamber—who do not have such backgrounds either, but displayed a good grasp of the issues at hand. Perhaps they, too, chose their respective partners very well. I notice that there is no intervention, so I will assume that that is correct.
As we have heard, the bill has two main parts, each of which covers a different aspect of criminal case law. I will speak mainly about part 2, but will briefly touch on part 1, if I may.
People want and need confidence in our justice system. If that confidence is to be maintained, people—the victims of crime in particular—must understand at least the rationale behind offenders’ sentences. There is a much wider issue to be discussed to do with automatic early release, which the Scottish Government is committed to ending—alas, Mr McLetchie has had his moment.
It has been mentioned that it is extremely important that there is consistency in sentencing and that it is understood not only by the legal profession, but by the victims of crime. Part 1 was introduced to fix the anomaly that was highlighted by the Petch and Foye case. The majority of those who gave evidence commented on how complicated the legislation is, but it was also acknowledged that sentencing as a whole is a pretty complex business. The difficulty of understanding the task should not be a big enough factor alone to deter us from fixing an inconsistency in the system; after all, that is part of the job that we are mandated to do.
I accept that there is a difficult balance to strike. We must ensure that people understand sentencing procedure, but sentencing is inherently difficult. It is not a matter of simply having a prescriptive list of sentences to match specific crimes. As the Justice Committee report acknowledges, we must also look at putting in place measures to ensure that victims and witnesses fully understand the sentences that are handed down by the courts and how they apply in practice. Mr Pearson’s idea of an aide-mémoire is worthy of further consideration.
I turn to part 2. Although the bill was introduced specifically in response to the case of al-Megrahi and his abandoned appeal, it can be applied to similar cases that might arise, as John Finnie said. Therefore, it is not completely without purpose, but to pretend that it was not fundamentally driven by the unusual circumstances surrounding that particular case would, of course, be foolish. Many members are much better versed in the intricacies and complexities of that case, but it is abundantly clear to all that serious questions remain over that tragedy. Primarily, we owe answers to the families of the victims who were killed in the Lockerbie tragedy, but the reputation of the Scottish legal system has a question mark—some may even say a stain—on it that will not be washed away until some serious questions are answered.
It seems to me that the Scottish Government is doing what it can to be as transparent as possible and to move the process forward. Now that the statement of reasons is in the public domain—I cannot confess to having read all 821 pages of it—we must ask: what now? Many of us wonder whether the truth will ever fully be revealed. Surely the only way to bring further clarity would be through an appeal. It was reassuring to hear the cabinet secretary say recently that the appropriate measures are in place for the family of al-Megrahi to pursue an appeal posthumously. It will, of course, be for them to determine whether to do so, but I hope that that opportunity is taken for the sake of the victims’ families if nothing else.
The whole tragic event has been mired in controversy and secrets, deals in the desert, and kissing dictators in Bedouin tents. The talk of oil contracts and secret documents all make for a conspiracy theorist's goldmine. The bill may not be the complete answer to the many outstanding questions that exist; the only thing that will put to bed such questions is the truth.
I am not accustomed to quoting Winston Churchill, and I do not intend to do so ever again, but he was undoubtedly right when he said:
“The truth is incontrovertible; malice may attack it, ignorance may deride it, but in the end, there it is.”
I hope that the bill will help us to take at least a small step towards discovering the whole truth of the deeply tragic al-Megrahi affair.
16:00
Presiding Officer, I think that I deserve full marks for bravery as the first non-member of the Justice Committee to venture into these choppy waters without the benefit of the committee tutorials. However, I have read the committee’s excellent report. I note the committee’s view, which was expressed near the beginning of the report, that the bill might have benefited from more consultation, and I agree with the emphasis that Jenny Marra put on the need for more consultation on data protection, in particular.
From my reading of the report, I agree that, in relation to part 1, there was a genuine problem that needed to be dealt with and that the judiciary should be given appropriate discretion. However, I noticed several quotations about the complexity of the proposed solution. As Jenny Marra said, James Wolffe QC told the committee that the Government had taken an extremely complex piece of legislation and made it more complex—and I award full marks to Christine Grahame for trying to unpick some of the complexities.
According to the Scottish Government, the bill is not unnecessarily complex but, as I listened to the cabinet secretary, the words went through my mind: “Explaining legal matters to the nation—I wish he would explain his explanation.” The committee was attracted by the relative simplicity of alternative approaches. Perhaps some of those could be investigated during stage 2.
It is not surprising that—like, I suspect, the general public—I am more interested in part 2. I have a general interest in the Megrahi case and I found several of the issues that the committee raised in its report interesting. For example, a former member of the Scottish Criminal Cases Review Commission suggested that the Government, rather than the commission, should make the decision to publish the statement of reasons. I note that the committee did not agree with the suggestion and I am happy to go along with the committee in that regard. However, I also noted a discussion about whether the factors to be taken into account by the commission should be spelled out in the bill. That certainly seems worthy of discussion at stages 2 and 3.
The report made clear that data protection was the main issue that was raised during discussions about part 2. I have been puzzled by the cabinet secretary’s insistence—until very recently—that data protection was an obstacle to publication of the statement of reasons and I hope that he will talk more about that when he winds up the debate, if he is doing so.
The Information Commissioner’s Office said in written evidence, which is quoted in the report:
“the Bill contains a robust legislative framework which will ensure that such disclosure is fair and lawful.”
I am sure that many members read Lucy Adams in the Sunday Herald on 1 April. She said:
“The Information Commissioner’s Office ... wrote to The Herald to deny claims that the report was held back by data-protection laws.”
She went on to say that the ICO had told the minister that, too. If that is not the case, the minister will no doubt want to say so. I am genuinely puzzled. David McLetchie has a particular political explanation for the Government’s approach. I do not particularly want to go down that route, but it is puzzling that data protection was for so long held to be the main obstacle to publication.
Having said that, I think that there are genuine data protection issues with regard to other aspects of the legal system. That is not the main subject for today’s debate, but perhaps the Presiding Officer will forgive me if I briefly refer to a constituent who came to see me during the past couple of weeks. She was most concerned that a full 20-page transcript of a protracted divorce proceeding that she had been involved in was published on the Scottish courts website. The document gave intimate personal details, as well as—believe it or not—details of specific bank accounts. I do not know whether that happened by accident or whether it is routine practice, although I believe that such reports are routinely put on the Scottish courts website at the discretion of sheriffs. I contacted the Scottish Information Commissioner and he told me that reports of court proceedings must comply with all eight data protection principles, so I think that there is a genuine data protection issue, which the Government, the Lord President and whoever else has an interest in the matter should address.
However, I do not think that that issue is relevant to the publication of the statement of reasons in the Megrahi case. That being the case, I hope that the SCCRC will officially publish the statement of reasons very soon, although many people will have already read it thanks to the Sunday Herald.
16:06
Where Malcolm Chisholm leads, I will boldly follow, as another non-member of the Justice Committee entering bravely into the fray. Never has the old quotation, “Laws are like sausages—it is better not to see them being made”, which is often attributed to Otto von Bismarck, been more apt.
The bill is a complex one that deals with complex issues. Christine Grahame, David McLetchie and Rod Campbell, who, unlike me, are all qualified legal professionals, have identified how difficult a bill it is. As a mere layman, I must be perfectly frank and admit that I have found a deal of the process and the technical content of part 1 extremely difficult to comprehend, and I am sure that many people on the street would do so, too.
The litmus test of any bill of this Parliament is not whether it makes for easy bedtime reading but whether it will deliver outcomes that are of benefit to wider Scottish society. That is the test that we must apply to any bill that is introduced. I do not think that it is unreasonable that the bill includes extremely complex and technical elements, given that it seeks to resolve a complex legal technicality. The question is whether, in passing the bill, we would deliver benefits. It is through that prism that I will view the bill. I want to assess whether it will have a beneficial impact for society as a whole.
Graeme Pearson rightly identified that, in that regard, a key consideration must be ensuring that victims, families of victims and witnesses understand the bill and benefit from it. In its response to paragraph 95 of the committee’s report, the Scottish Government states:
“We are keen to explore with stakeholders, in the context of developing a Victims and Witnesses Bill, whether further steps could be taken ... to enhance the ability of victims and witnesses to better understand the practical effect of decisions made.”
That is very much a live issue for the Government. It is clear that it is keen to ensure that victims, witnesses and, where appropriate, relatives of victims have an understanding of the process and how it affects them, and what the outcomes of it are likely to be. We should not expect such people to be legal experts, although many of them acquire a good understanding of the legal process as they go through the system. As someone who has spoken to a number of relatives of victims and witnesses, I know that they develop quite a strong understanding of the legal system as a result of their experiences and their exposure to it. As well as accepting the need for such people to understand the legal system, we should not dismiss the fact that many of them develop an acute understanding of how it works.
We should not lose sight of the fact that, although the two sections in part 1 of the bill have, in effect, been christened with the names of the cases that gave rise to their being necessary, those cases are not the only ones to which those two sections do or could apply. The cabinet secretary has identified that only a small number of cases that are in the system at the moment would fall into that category, but it is worth remembering that the cases in question are very serious criminal cases that give rise to significant public safety concerns. It is therefore important that any anomalies in the judicial process and the sentencing system are dealt with to ensure that cases like Petch and Foye do not arise in future.
It has been suggested that there should be a wider review of sentencing. The obvious drawback in that is that a quick fix might be required for a situation like that in the Petch and Foye cases. By definition, a wider review of sentencing would take a longer time and the length of time taken could mean that further anomalies would not be prevented. It was therefore perfectly appropriate for the Government to introduce the bill, particularly part 1, as a fix that is required for very serious criminal cases.
Part 2 was clearly driven by the al-Megrahi case, but we cannot rule out the possibility—however remote—that a similar case or another case with similar connotations will arise in future. It is entirely appropriate for the Government to put in place provisions that will allow some of the difficulties that were faced during the process of the al-Megrahi case to be ironed out so that they will not be an issue in future cases.
I support the bill’s general principles. I merely observe that, although I do not possess my colleague Mr Finnie’s understanding of part 1, which he referred to as “the easy bit”, we will take up Mr Pearson’s suggestion—I have offered to draw the pictures for Mr Finnie’s book.
16:11
The Criminal Cases (Punishment and Review) (Scotland) Bill is needed to remedy the judgment handed down in Petch and Foye v Her Majesty’s Advocate. The bill seeks to deal successfully with an anomaly by which prisoners who are given a mandatory life sentence could apply to become eligible for parole earlier than those serving sentences of a fixed length. It is disappointing that we could have a loophole in our justice system today that would allow prisoners who have committed a crime so serious that it merits a life sentence to be eligible for parole earlier than those serving sentences of a fixed length.
I take this opportunity to thank Christine Grahame, who is not here just now, for her succinct examples earlier of sentencing and parole. Like some other speakers, I am not a member of the Justice Committee, so I found what she said quite helpful. However, I read diligently all the briefings for the debate and I am satisfied that the bill will successfully close the loophole, although I have some reservations about how it will do that.
I understand that part 1 is necessary because of the Petch and Foye judgment, but it only adds complexity to an already complicated area of the law. The current legislation has caused much debate and it has been subject to various interpretations by the courts. Although the bill remedies a loophole in the sentencing structure, it will not give a clear legislative solution, because what is being proposed is too similar to what has gone before.
In general, approaches to sentencing need to be less prescriptive and sentencing requirements need to be clearer and more appropriate. That would make it easier for the public and the victims of crime to understand how and why a sentence was given. I understand that the Justice Committee has asked the Scottish Government to ensure that victims and witnesses fully understand the sentences that are handed down by courts and how they are put into practice. I welcome that proposal, but the sentencing should also be made clearer to the families of the offenders and it should be put in such a way that they will be able to understand the sentence during what is a traumatic time.
The Law Society of Scotland made a valid point that proposed new section 2B(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 will give the sentencing judge discretion as to the length of the punishment part of a sentence. The Law Society is concerned that there is provision in the sentence calculation exercise for the sentencing judge to increase the punishment part period, having regard to the same features that could have been considered when that period was first identified. The Law Society feels that someone sentenced in that way might appeal on the basis that it leads to double counting. I feel that the Scottish Government should look into the potential for double counting in the bill.
I agree with the Justice Committee and the Law Society that the bill is acceptable as an interim measure that addresses the immediate concerns arising from the Petch and Foye judgment. However, the opportunity to simplify a complex part of our law has been missed. Indeed, our sentencing legislative framework should be reviewed in its entirety to make it clearer and easier to understand.
Part 2 was intended to allow the publication of the reasoning behind the decision to refer the case of Mr Abdelbaset al-Megrahi to the High Court as a possible miscarriage of justice. The reasons were originally not published because the Megrahi appeal was abandoned.
Arguably, part 2 is now redundant because, as members heard earlier, the reasons for the appeal being dropped were leaked and published in the press. I agree with the Justice Committee that the publication of the statement of reasons in the Megrahi case might serve a relatively limited purpose. However, there needs to be as much openness as possible about why Megrahi was allowed to make his appeal.
The main reason why part 2 was introduced was to facilitate disclosure in the Megrahi case. However, it is general in scope and can apply, in future, to cases other than that of Megrahi. That gives the Scottish Government an opportunity to consider whether the provisions are strong enough to apply in other cases.
If part 2 can apply to future cases, there will have to be a strong public interest in the case for publishing the reasons for appeal. There needs to be as much transparency as possible so that the public can have a greater understanding of the appeals process.
The general principles of the bill are decent. They set out to solve a couple of issues in our justice system. However, an opportunity has been missed to make the sentencing procedure more transparent and easier to understand. I also hope that part 2 is robust enough to apply to future cases.
16:16
Over the past year, members of the Justice Committee have been faced with some complex material to digest in the course of their deliberations.
As we have heard from previous speakers, some of whom are legally trained, part 1—which deals with the consequences of sentencing post the Petch and Foye judgment—has been one of the most difficult pieces of legislation to deal with in terms of explaining clearly what has happened and what is required to happen to end the anomaly whereby life prisoners may have parole hearings earlier than non-life prisoners who were convicted of similar offences.
There are, of course, differences of opinion. The Scottish Government believes that the bill shows a clear way forward in calculating the punishment part for non-life sentences, while some witnesses believe that we are faced with an overly complicated system. However, I am sure that no one disagrees with the cabinet secretary that the public must have full confidence in the process of law.
We must have a system that is understandable to everyone who is involved in proceedings in a court of law, and it is vital that those who are involved but not legally trained—such as the accused—are able to understand the sentence that is handed down. Therefore, I am delighted that, in his initial response to the committee report, the cabinet secretary gives a clear indication of routes that accused persons can take to get help with the process.
Of course, the court must also be able to hand down a sentence that is appropriate to the crime that was committed. Judges must take into consideration comparative justice—or, indeed, comparative injustice—when handing down a sentence. That, on top of ECHR legislation, complicates matters.
I am sure that members will be delighted to know that I do not intend to go through the arithmetical permutations that are described in the committee report. Christine Grahame’s tutorial on sentencing was probably enough for all members.
However, the committee had some reservations about the provisions. As has been mentioned, perhaps a less prescriptive approach is required. I welcome the cabinet secretary’s earlier comments on that. Any effort to simplify the process appears to be worth while—a view that the Law Society and others share.
In his written ruling on cutting the punishment part of Morris Petch’s sentence, Lord Osborne said that it might be “some comfort” to those concerned to note that Petch would not necessarily be released after completing eight years. However, the public are rightly outraged by any cut in a convicted sex offender’s sentence. That is even more the case when it is perceived—rightly or wrongly—that the decision is made on a technicality. Of course, if we can end early release, these issues will be so much easier to deal with in and out of court. I therefore commend the cabinet secretary on his efforts to find a speedy solution to this problem, although I believe that some work still needs to be done.
I do not think that there will be anyone in the chamber who does not know that part 2, which deals with the disclosure of information obtained by the SCCRC, is based on the case of Abdelbaset aI-Megrahi. One might argue that, now that events have overtaken us, there is no point in proceeding with this part of the bill but, like the cabinet secretary and Mark McDonald, I have to wonder what would happen if a similar atrocity were to occur on Scottish territory. I certainly support the principle behind part 2, because the bill has cast light on areas hidden in the darkness of secrecy, personal interest and the national interest of various nations. Just in case another case similar to Megrahi’s arises in future, we need to look at the possible data protection issues that Malcolm Chisholm highlighted, which are reserved, and permission to allow the publication of information from individuals, outside agencies and nation states.
Like my colleagues on the Justice Committee, I support the principle of openness whenever possible; indeed, in my opinion, the Megrahi case itself would have benefited from more of it. Of course, that leads us to ask, “What is the public interest?” but that is another question. I believe—and suspect that most people think—that the SCCRC should have been allowed to release the statement of reasons on this case years ago. I also agree with my Justice Committee colleagues that the SCCRC is the appropriate body to deal with the release of such information. It is ludicrous that a version of it was released by a Sunday newspaper and not through official channels; as far as the case of Megrahi is concerned, such a move cannot serve the public interest. However, we are where we are and I believe that, in an effort to discover a clear direction for the process, the bill should proceed.
I suspect that the bill has caused every member of the Justice Committee much frustration, but I agree with the principles behind both parts of it. I have to say that I found witnesses’ written and oral evidence fascinating and, as we have gone through stage 1, it has been amazing to hear the different sides of the argument from both the legal profession and groups such as Justice for Megrahi.
I fully support the principles of the bill and the Justice Committee’s report.
16:22
Like other committee members, I am grateful to everyone who submitted evidence on the bill, because they certainly helped us to get to grips with an extremely technical piece of legislation. First of all, I should say to Humza Yousaf that my husband does not have a legal background—he is, in fact, a documentary filmmaker—but what he offers me is endless patience. He certainly needed that patience when I tried over and over to explain to him what the bill was about; on this occasion, I might even have stretched it a bit.
During the evidence sessions, there was a great deal of to-ing and fro-ing, particularly with regard to part 2, as arguments about the interaction of data protection legislation and the proposals in front of us played out. Much of that could have been avoided had the Government carried out the usual formal consultation prior to the bill’s introduction.
Like other Justice Committee members, I support the bill’s general principles. As we have heard, it contains two very disparate pieces of legislation. Although not unprecedented, it is not a particularly sensible way to legislate as it ties Parliament's hands. Although part 2 is couched in general terms, we all know that its overriding purpose was to facilitate the publication of the statement of reasons in the al-Megrahi case. Indeed, some might say that it is no longer required, given that a national newspaper published that very document a few weeks ago. Such a development simply highlights how events can overtake us and exposes the dangers that are inherent in linking together two totally separate items in a bill. The fact that part 2 is tied to part 1 means that it cannot be dropped unless we are prepared to allow the whole bill to fall. Of course, that would not be sensible, so we must press on with part 2, however unnecessary it might be. Although it is highly unlikely, I accept that another abandoned appeal in the future might raise significant public interest. However, as the committee convener said, we had little time to take evidence on the general applicability of the provisions as, understandably, most of our evidence related to the Megrahi case.
I support the view that a full and detailed account of the events surrounding Lockerbie should be available to us all. For too long, there has been speculation about the case. As Humza Yousaf rightly pointed out, publication of the statement of reasons would never have resolved all the outstanding issues, but it is an important, if limited, step. Without a doubt, it is in the public interest to know why Mr Megrahi was allowed to appeal. It is vital for Scotland that our justice system is open and transparent and, if mistakes have been made, we must learn the lessons so that justice can be served.
I will focus the rest of my comments on part 1, which relates to the punishment part of non-mandatory life sentences, as we have heard. As the cabinet secretary outlined—the committee convener developed the point in her detailed seminar—it sets out to correct a situation that arose following the appeal court judgment in March 2011 in the case of Petch and Foye v Her Majesty’s Advocate, which meant that prisoners who are given a discretionary life sentence or an order for lifelong restriction can apply to become eligible for parole earlier than those who are serving sentences of a fixed length. The bill is intended to restore to the courts the discretion to set a punishment part of sentences when it considers that appropriate in the circumstances.
Yet again, the Scottish Government finds itself having to play catch-up in relation to ECHR compliance. It has had to get out the sticking plasters again. The fact that this is the latest in a string of such cases highlights the need to ECHR proof all our legislation rather than only responding after the fact. Indeed, the committee’s report draws attention to the interim nature of what is proposed. It is surely time that we looked closely at our body of law and reviewed exactly how it sits in relation to our ECHR responsibilities.
I support what the Government is trying to achieve with part 1, but I question whether it is going about it in the right way. Our committee report highlights concerns about the unnecessary complexity of the proposals. Public confidence in the law and ease of understanding ought to be central to our justice system. Sentencing is a crucial part of that, and it should be readily understood by all those who are involved as well as the wider public. The bill is intended to simplify the situation, yet the Law Society maintains that
“the Bill will not give rise to a clear legislative solution”,
because what is proposed by way of calculation and comparison exercises is similar to what has gone before and may itself bring further confusion and uncertainty, which would give rise to its own complexities.
We heard in evidence from the Faculty of Advocates that this is complicating the issue significantly and interfering with judicial independence, and that there are questions about the extent to which it is appropriate to seek to restrict, control and direct the exercise of judgments. There is a danger that sentencing is becoming too formulaic and we are tying the hands of judges and interfering with their discretion.
I draw members’ attention to the paragraphs on pages 16 to 18 of our report on public confidence and clarity in sentencing. As Jenny Marra pointed out, James Wolffe QC characterised the approach of the bill as being
“to take an already complex piece of legislation and make it even more complex.”—[Official Report, Justice Committee, 31 January 2012; c 864.]
James Chalmers of the University of Edinburgh considered that the bill
“seeks to create a tortuous system which is barely intelligible to lawyers, let alone the general public”.
He went on to state that he had not spoken to anyone who had felt comfortable in reading it and working out what judges are required to do under it.
The committee is of the view that the Government should consider whether a less prescriptive approach would be clearer and more appropriate. I have considered the cabinet secretary’s response that the matter is necessarily complex, but I remain of the view that we ought to be doing everything possible to simplify it, and I ask the cabinet secretary to give further thought to that during stage 2.
I have some sympathy with the view that the sentencing legislative framework has become unduly complex and should be reviewed in its entirety to provide greater clarity. I urge the Government to give serious consideration to that in the longer term.
16:28
When I was given the task of being a member of the Rural Affairs, Climate Change and Environment Committee, I never thought that I would be grateful for that, but I am absolutely so. From what we have heard from the members of the Justice Committee this afternoon, it is not somewhere that I would have wished to be.
There is little point in my going over the statements that we have already heard from various members. Part 1 of the bill is indeed complex. However, the complexity is perhaps not in the sentencing itself, but in explaining it to members of the public. In my previous role as a social worker, people often asked me to explain the sentencing that was being done in the courts. As an MSP, I am being asked the same questions. I have found it very difficult to explain to former clients and my constituents in Aberdeenshire West the complexities of sentencing.
I am grateful to Christine Grahame for her explanation, but it had me slightly perplexed initially when she said that she was going to introduce colours to explain it. I thought, “I am finding it difficult enough to understand the legislation without having to understand colours as well.” However, I am grateful to Christine Grahame for introducing John Brown, John Black, John Red and, eventually, John Green into her explanation; I was confused at the end, because I think that she was trying to refer to John Red.
I have to say that I confused myself. John Green is an intruder.
I thought that it was males who had the problem with reds and greens.
The matter that we are debating is very serious, and it needs to be resolved. I congratulate the Justice Committee on its efforts to scrutinise the bill and to tease out and highlight the anomaly in a very complex bill. At the end of the day, members would do well to remember that we are at stage 1 of the bill process and many things can happen at stages 2 and 3. I am sure that many of the questions that have been put to the cabinet secretary will be answered.
Let us ensure that, at the heart of where we end up in our deliberations on the bill, members of the public who are victims, witnesses, families and carers of victims, and those who are sentenced, all understand what has happened, why it has happened, and what the outcomes will be. We owe it to everyone who becomes involved in that procedure. People who come to our courts deserve a full and comprehensive understanding. I commend Graeme Pearson’s suggestion that we might need to do something to help people who are going through the court system to understand the complexities of sentencing.
There is much more work to be done and I hope that the Justice Committee and the cabinet secretary can work together to ensure that a very complex matter is explained so that people like me can go back to my constituents and explain it.
That brings us to closing speeches. I remind members who were in the chamber for the debate that they should be here for closing speeches.
I have a little bit of time in hand for interventions. I call David McLetchie—I can give you up to seven minutes, Mr McLetchie.
16:33
Thank you, Presiding Officer. Once again, you show your generous nature. I am most gratified. This has happened a couple of weeks in a row.
As I indicated in my opening remarks, the Scottish Conservatives will support the bill at stage 1. We welcome this afternoon’s debate, which has provided us with an opportunity to question and examine the Government’s handling of the legislation, and to hold the Government to account on a number of matters that go beyond the strict boundaries of the bill itself. We always welcome the opportunity to do so.
I welcome the sentencing provisions, however complex they might be, because they seek to address the Petch and Foye anomaly. It is clearly undesirable that prisoners who are given an indeterminate sentence can be eligible for release at an earlier date than if they had been sentenced to an equivalent fixed time in prison.
All parties and all commentators have recognised that point, as has Lord Justice General Hamilton in his opinion on the Petch and Foye case. He recognised that the outcome or conclusion that the court had come to was anomalous. He said:
“I have accordingly come, with regret, to the view that, however unsatisfactory it may appear as a matter of comparative justice, Parliament has given statutory effect to an arrangement under which an indeterminate prisoner will, or at least may, become first eligible for consideration for parole at an earlier stage in his sentence than an equivalent determinate prisoner.”
He went on to say:
“If this situation is to be remedied, it is for Parliament to remedy it.”
He was too charitable to say that, since we made a mess of it the first time, we should sort it out the second time, but there is an element of that in his comments. To the extent that the bill is a remedy and corrects the anomaly that the courts have identified, of course it should be welcomed.
We have created a tortuous system, as is apparent from the many comments to that effect. That is an important point, because a complex sentencing regime that is incomprehensible to the general public will serve only to further reduce the already low level of public confidence in sentencing policy. As members have said, Graeme Pearson made good points about trying to explain the mysteries of sentencing to people who are, however inadvertently, engaged in our court system. Of course, that is only part of the solution—simplification is the substantial answer.
That leads me back to the point that I made in my opening speech that the Petch and Foye case further highlights the need to abolish the system of automatic early release of prisoners. I make no apologies for returning to that proposition because, without the existence of such a scheme, the issue would have been avoided, as the custodial sentence that is handed down to convicted criminals would in all cases be the sentence that is served.
Does Mr McLetchie acknowledge that our prisons are overcrowded and that we cannot just abolish the system that he is talking about? At the end of the day, we are trying to have robust community sentencing, as recommended by the McLeish report, which was mentioned earlier. Does Mr McLetchie agree that we should wait until we have the infrastructure in place to support that?
I agree that our prisons are full. However, I think that that is a good thing and it is one reason why crime rates are at their lowest for 35 years. I am astonished that members of the Scottish National Party, who like to brag about that weekly, fail to see the fairly obvious and elementary connection between the two things. I say to Mr Robertson that people who are in prison are there because they have been convicted of a crime and our judges—whose judgment I respect and in whom I have confidence—have decided that they deserve to be there. That is down to the judgment of judges, not my judgment. Our function as legislators and the Government is to provide a framework to ensure that the crime and punishment system that we have put in place actually works.
I note Mr McLetchie’s great support for prisons as an institution. Can he remind me how many prisons were constructed in Scotland in the 18 years of Conservative Government? Was it zero?
I do not know whether it was zero.
I believe that it was.
Hang on. I am sorry, but I honestly do not know the answer to that question. I will look up the answer and I will write to the minister after the debate. [Laughter.] Right. I have kind of lost my thread.
You have one minute left in which to find it.
I shall have to stop debating that point and move on to part 2.
I continue to question whether part 2 is necessary in the changed circumstances in which we find ourselves. No one would dispute that the bill was drafted and scrutinised with the Megrahi case at the forefront of our minds. Now that the statement of reasons has been published, the primary purpose for part 2 no longer exists.
I take the point that other members have made that the bill is drafted in general terms, and therefore in theory is capable of applying to other cases in future. That is undoubtedly the case. However, I have serious doubts about whether part 2, drafted quite clearly with one specific case in mind, is robust enough to apply to other circumstances. Does the cabinet secretary have any intention of implementing part 2 immediately? I accept that for technical reasons, because of the structure of the bill, he cannot withdraw it without prejudicing part 1, but there seems to be no obvious reason why it should be commenced immediately. I suggest to the cabinet secretary that we might look at the commencement provisions at stage 2 or stage 3 and perhaps build in a bit of time to consider whether the measure is a sustainable one that we want on our statute book for the longer term.
16:41
The bill is not one of those pieces of legislation that attract outright opposition, but it is one of those that beg the question how else they might have been structured or what might have been done instead. There are few instances in the 13 years of this Parliament in which a stage 1 report has begun by noting that the purpose of the legislation has been overtaken by events even before the committee has met to agree its report. Those few instances have arisen where the legislation has been introduced on an emergency basis, typically because a court of law has interpreted statute in a new way that renders change in the law urgent and unavoidable.
This is not such a case. Part 1 responds to a specific judgment, in Petch and Foye, that invites statutory clarification, but that is not the same as those previous pieces of legislation that were introduced on an emergency basis, in which haste was really required. As we have heard, part 2 responds to one specific case in which the legal position has not changed in any fundamental way since the release of the convicted offender, on compassionate grounds, in August 2009, but in which the inadequate statutory provision has been exposed over time.
As the convener of the Justice Committee noted, parts 1 and 2 deal with quite different matters. That is reflected in the bill’s cumbersome title, to which Graeme Pearson referred. Given that one part responds to a High Court judgment from March 2011 and the other part follows the decision in the Megrahi case in August 2009, it is hard to identify any compelling reason why the two matters have had to be addressed in the same piece of legislation.
Although the bill is not emergency legislation, as Jenny Marra and Malcolm Chisholm noted there has been no pre-legislative consultation other than with the Scottish Criminal Cases Review Commission on part 2. Perhaps if some of those who gave evidence to the Justice Committee had been formally consulted first, some of their criticisms might have been pre-empted. Mr MacAskill has said today that he would welcome an alternative approach. Perhaps such an approach might have been easier to develop if consultation had happened before the bill was introduced.
The verdict of most expert witnesses on part 1 seems to be, at best, “not proven”. The Government’s intentions are laudable, but its solutions are not. Graeme Pearson argued that the measure should not provide just a short-term fix to a new interpretation that was reached by a majority of judges in one particular case. More needs to be done to make the whole sentencing process less opaque and more transparent and accessible for those affected. As Mary Fee said, that opportunity appears to have been missed. If so, that is a matter of regret.
Nonetheless, there may still be opportunities at future stages of the bill to address that challenge. Perhaps the cabinet secretary will indicate in closing whether there will be Government amendments at later stages to begin to provide a more rational structure to sentencing policy as a whole, or whether he will seek to discuss alternative schemes and approaches over coming weeks and months.
Given that part 1 is all about sentencing and touches on determinate and indeterminate sentences and other matters of that kind, ministers might have seen fit to do something more decisive about the whole area of early release from prison even if they did not go to the extent of seeking to meet their manifesto commitment, as David McLetchie suggested they could have done. A wider bill to address sentencing in general might have had more value than a short-term fix to Petch and Foye alone, and it would have made more sense than the current uneasy combination of two quite separate measures. I look forward to hearing more about the Government’s future intentions in those areas.
It was perhaps predictable that the statement of reasons on Megrahi’s grounds for appeal would be published, and it was published online a few days before the stage 1 report was agreed by the Justice Committee. When the Sunday Herald made the decision to publish the statement in full, it simply stepped into the vacuum that had been left by ministers. The Justice Committee’s report describes publication as a hugely significant development given the policy intentions behind part 2 of the bill, and it certainly is. In effect, the newspaper’s decision to publish and the Crown’s intimation that it would not prosecute rendered part 2 redundant in relation to its main objective, as Christine Grahame said.
We have heard that part 2 is drafted in general terms and may still be relied on in future cases. That is true at least in theory, although Christine Grahame and other members have raised doubts about whether it would be robust enough for that. Because of that theoretical position, we will support the general principles of part 2 today. However, devising provision for a past case and then making it available for possible future cases is surely not how good law is made. I would be interested to know whether the minister intends to lodge any amendments affecting the substance of part 2 to reflect the changes in circumstances.
Megrahi’s is not an obscure case that has been hauled into the limelight by its implications for human rights or for judicial procedures. It relates to the gravest crime that has ever been tried by a Scottish court, for which one man has been convicted, and part 2 would not be before us today if Megrahi had pursued his appeal. It appears that he did not pursue his appeal, in part, because Mr MacAskill repeatedly reminded him that he would not qualify for release under a prisoner transfer agreement as long as he had an appeal pending. However, Mr MacAskill does not appear to have explained to him that the same requirement did not apply to the option of release on compassionate grounds. That is unfortunate, as the abandoned appeal allows the inference to be drawn that the conviction was unsafe in the first place.
Is the member not aware that Mr al-Megrahi received significant legal advice? Some of that will be known to Mr Macdonald, given the nature of whom the advice came from. I cannot understand why Mr al-Megrahi would be in any doubt about the difference between a prisoner transfer agreement and compassionate release.
I am sure that the legal distinction was drawn to his attention. However, I am also sure that anyone facing a lengthy prison sentence who meets a Government minister who explains that one circumstance requires him to drop his appeal but does not address the other circumstance might draw his own inference from that.
Perhaps ministers will also reflect on why they decided that the bill was necessary but left it to the current parliamentary session to introduce the measure instead of acting more quickly. We have heard, for example, that the data protection grounds claim for caution on the part of ministers did not impede publication when the disclosure of information was in the interests of justice. It is clear that ministers could have laid an order at any time after the previous order was found wanting at the end of 2009. Had they done so, the commission might have been able to publish its statement of reasons at its own hand many months ago. A change in the law ahead of publication would have avoided the Parliament being reduced to the status of a rubber-stamp for decisions that have already been made in the offices of editors and publishers here and elsewhere.
We, on this side of the chamber, have always favoured openness and transparency in relation to the decisions that were taken in the Megrahi case. That is why we support the general principles of both part 1 and part 2—not in the belief that the Government has got it right, but recognising that it has tried. We invite ministers to try a bit harder when the bill gets to stage 2.
16:49
The debate has been quite good and wide ranging, given its complexity. A variety of significant speeches that were of great merit have been made. Some were more of a legal treatise, such as that from the Justice Committee’s convener, who narrated the position by referring to Messrs Black, Brown and Red. As would be expected given his background and ability, Rod Campbell gave an eloquent contribution of a legal nature. We have also heard from members who are neither part of the Justice Committee nor legally qualified. Mary Fee made a significant contribution that shows that the matter is being dealt with appropriately and adequately, as would be expected with Government legislation.
Some counter-arguments have been made. It has been argued that the bill is not large enough and that we should address sentencing as a whole. If we did that, we would still be in a consultation process. Calls have been made to separate the parts of the bill. It is accepted that there are two particular parts, but we must bear it in mind that legislative time is at a premium. If we had introduced two separate bills, we might not have had the same amount of time to deal with them and might have had to extend the time for that, which might have meant that other equally desirable legislation fell.
Important but perhaps tangential matters have been raised. We are having the debate on the day after we saw Lord Bracadale speak on television in the case of HMA v David Gilroy, so we recognise the willingness of the Scottish Court Service under the Lord President to be as open as possible. That move was welcomed as a way of making the process more understandable to the public, but we recognise that there must be limitations.
Malcolm Chisholm and Graeme Pearson raised matters that are not necessarily particular to the bill, although it was appropriate to raise them. We are happy to look at Graeme Pearson’s point, on which Dennis Robertson commented. The point is more one for the Scottish Court Service, but we would be happy to discuss it with Graeme Pearson. As we move towards producing a victims and witnesses bill, we must consider how we can build on developments such as that which involved Lord Bracadale.
Such matters involve a balance, and we have heard about a counterbalance. Malcolm Chisholm talked about the difficulties that a constituent of his has faced. I am happy to engage with him on that. As he said, the question is ultimately for the Lord President and the Scottish Court Service, but we can work together on it.
There is no doubt that stage 2 amendments will have to be lodged. We are happy to look at that. We have always said that, if people think that a better and simpler way exists, we will be happy to use it. Some members of the legal profession have criticised our proposals as inadequate. I have no doubt that, when a fee note is rendered and they consider matters, they might be prepared to put forward alternatives. As I say, the door is open and we are happy to take comments on board. However, as I said in my opening speech, no alternative proposals have been made so far.
That takes us on to why we are where we are with part 1. We must deal with victims and recognise the judiciary’s important role. In relation to victims, I must assure the public that, although sentences have been reduced, prisoners will not be released early and will be subject to parole requirements for public safety.
The situation was of deep concern. As members—including, in particular, Colin Keir, Dennis Robertson and John Finnie—said, we are talking about horrendous crimes. Petch and Foye perpetrated appalling crimes, and there has been great public concern. The issue might be viewed as more theoretical than practical, because I expect that the Parole Board would not have released them, but it was of significant concern and was commented on by politicians from all political parties, so it was appropriate that we took steps to address it.
We must support the judiciary, as has been said. The court referred the issue to us and the Lord Justice General made it clear that a legislative fix would be required. The matter divided the Scottish courts. As we heard from Christine Grahame and others, the Petch and Foye case was decided by a majority of five to two. The judiciary were split on what was correct and what should be done, but something must be done.
As David McLetchie and John Finnie said, orders for lifelong restriction and non-mandatory life sentences are not given out routinely. There have been only about 75 since the powers were introduced. However, I have made it clear that when a judge feels that an order for lifelong restriction is necessary or a life sentence appropriate—even for a crime that would not usually carry such a tariff—they will have the full support of this Government, because we are dealing with people who can be extremely dangerous and destructive to our communities.
As Jenny Marra said, when the intention behind the giving of an order for lifelong restriction or a non-mandatory life sentence is undermined, we must act to protect the integrity of the system. The measures in part 1 are being introduced to protect victims, to allay their understandable concerns and to support the judiciary by giving them the right to invoke orders for lifelong restriction and give non-mandatory life sentences. We hope that those will not be used routinely—that does not happen at present—but they will require to be used. Given that it takes a great deal of courage and, no doubt, thought, wisdom and reflection on the part of members of the judiciary to make such decisions, we must ensure that, when they choose to invoke their right, we enable them to do so.
I make it clear to Mr McLetchie and Mr Robertson that part 2 of the bill was drafted on a very general basis. Although it is clear that we are specifically talking about Mr al-Megrahi, because he is the only name in the frame—if I can put it that way—the legislation has been drafted in such a way as to allow it to be used in any circumstance that may arise in future. This is the third such situation that has arisen since the creation of the SCCRC, but the disclosure of information does not appear to be a relevant issue in the other two. I cannot specify the circumstances that might result in similar situations having to be addressed, but I can give members an absolute assurance that the bill is robust enough to deal with such situations in future.
If there is a requirement for stage 2 amendments, we will be happy to look at the issues and address them. I think that we will address some issues related to data protection in that way.
On the broader data protection issues, I make it clear that we obviously had to act appropriately. The Megrahi case was a matter of great public concern, but we ensured that we drafted the bill broadly to deal with general matters. Given that neither the First Minister nor, more important, I have ever seen the statement of reasons, we could not say what would be subject to data protection requirements or what would or would not require to be redacted. It is fair to say that the SCCRC still has to consider specific issues and that some material will have to be redacted. Indeed, irrespective of data protection issues, owing to public safety considerations there will have to be confidentiality measures to protect witnesses.
We have acted appropriately and the provisions in part 2 will be robust enough to deal with any unforeseen circumstances that may arise.
Yet again, Mr Macdonald took the opportunity to criticise the Government and, in particular, my stance on Mr al-Megrahi. I am prepared to answer for that decision. Mr Macdonald might care to reflect on the fact that it is neither myself nor the First Minister who is currently being pursued in a court action for having rendered somebody back to Libya. I stand responsible for having released Mr al-Megrahi under the compassionate release process. I saw him board a plane in Glasgow. However, I am certainly not responsible for having rendered anybody through any security services, on my say-so or that of anybody else.
To be fair to Mr McLetchie, I know that he will write to me about the number of prisons built by the Conservatives in 18 years. I look forward to getting confirmation that, during 18 years of Tory rule, despite the fact that the Conservatives seem to think that prison works—rather than the record number of police officers that we delivered—they built no prisons.
Mr McLetchie chose to disparage Henry McLeish and Dame Elish Angiolini. All I can say is that one is a former First Minister and the other is a former Lord Advocate: both have served their country and their offices well, and the record of the work that they contributed is much appreciated. Thankfully, we will not have to deal with any Tories in either of those offices.
I am happy to move the bill, as it will serve Scotland well. [Laughter.]
That concludes the debate on the Criminal Cases (Punishment and Review) (Scotland) Bill. I see that Mr MacAskill recognises that he has made a mistake.