Criminal Cases (Punishment and Review) (Scotland) Bill
The next item of business is a debate on motion S4M-03369, in the name of Kenny MacAskill, on the Criminal Cases (Punishment and Review) (Scotland) Bill.
15:44
I begin the formal stage 3 debate by thanking the members of and clerks to the Justice Committee for their careful consideration of the Criminal Cases (Punishment and Review) (Scotland) Bill. As I am sure members will highlight, this is a small, important but complex bit of legislation that takes some time to understand fully.
I also thank the external stakeholders who have taken the time to engage in the bill process and share their knowledge and views during scrutiny of the bill. In particular, the Scottish Criminal Cases Review Commission has been of great assistance throughout in offering views on how best to enable it to consider the release of information relating to cases that it has referred to the appeal court but which subsequently have been abandoned.
I thank, too, the Information Commissioner’s Office for its assistance in helping us to understand more fully the data protection issues relating to part 2 of the bill.
The bill deals with two distinct topics. Part 1 addresses an anomaly that has arisen with regard to the setting of the punishment part of non-mandatory life sentences. The bill sets out a clear framework that the courts must follow in future when sentencing prisoners to a non-mandatory life sentence.
Part 2 provides a framework within which the SCCRC can consider whether it is appropriate to disclose information that it holds relating to cases that it has referred to the appeal court where that appeal subsequently has been abandoned.
Part 1 is a direct response to an appeal court judgment in the case of Petch and Foye v Her Majesty’s Advocate in March 2011, concerning 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. Following the judgment in Petch and Foye, a number of offenders have successfully appealed and had the punishment part of their non-mandatory life sentences reduced.
It is important to emphasise that the judgment did not and does not mean that serious offenders have directly been released early from prison. Since the judgment took effect, any offender who has had their punishment part reduced will continue to 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.
However, there is common agreement throughout the chamber that it is wrong that a person who is given a non-mandatory life sentence could become eligible to apply for parole earlier than if they had been given a fixed sentence for the same crime. The bill gives back to the courts the discretion to set the punishment part of a non-mandatory life sentence to satisfy the need for punishment of the offender.
We are aware that throughout the parliamentary process there has been some criticism of the provisions on the grounds that they are too complicated. We accept that the provisions are complex but we do not think they are unnecessarily complex. The provisions exist in a particular context and seek to address a very particular issue. The sentencing of non-mandatory life offenders is a complex area of law, with a fair amount of detail involved. However, the courts are used to following the statutory framework provided. In the bill, our task is solely to resolve the Petch and Foye anomaly. We believe that the somewhat prescriptive approach that we have taken is preferable to passing legislation that may be simpler to read but harder to apply.
We accept that the problem of how a judge should calculate the punishment part of a non-mandatory life sentence remains a difficult one, and we consider that it is important to set out the steps involved in legislation as clearly as possible, rather than placing the full onus on judges.
I am aware that some—the Law Society of Scotland, for example—have suggested that the problem could be addressed simply by removing the requirement to strip out the public protection element of the notional determinate sentence when calculating the punishment part of a non-mandatory life sentence. We accept that, on the face of it, that would remove the step in the present calculation that created the Petch and Foye anomaly. However, our solution to Petch and Foye has to be seen within the context of Scots law and case law, including European convention on human rights case law. In particular, previous case law has accepted that determinate sentences contain, or at least can contain, an element that relates to public protection, even though they are not expressly divided in that way.
Does the cabinet secretary recognise that although that is the case, the matter is not one that is typically specified or separated out, and therefore there is at least some merit in the argument that a simpler approach might achieve the same objective in a way that is more comprehensible to the public?
I accept that argument, but—as I was about to say—life sentences are split into a punishment part, which is fixed, and an indeterminate public protection part. When calculating a punishment part, ECHR case law says that the punishment part cannot contain an element relating to public protection because it would be unfair to do so.
We therefore consider that removing the requirement to strip out the public protection element of the notional determinate sentence cannot be done, as the need to strip out any public protection elements from a punishment part is a clear obligation under ECHR in the context of the sentencing of life prisoners. Furthermore, the effect of the Law Society proposal alluded to would be to sweep away the existing framework for calculating the punishment part of sentences, with the aspects that it requires for certainty of effect and ECHR compliance, and leave nothing in its place.
Although the Petch and Foye judgment affected only a small number of sentencing cases—only around 80 offenders have been given non-mandatory life sentences in the past seven years—as a Government, we wanted to act quickly and appropriately to address the problem raised by the judgment and ensure that people have confidence in the sentencing of the most serious offenders. We have done that in part 1.
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 that appeal is subsequently abandoned.
We introduced the provisions as part of our commitment to be as open and transparent as possible about all aspects of the Lockerbie atrocity and, specifically, to address the situation that had arisen with regards to the commission’s statement of reasons for referring the al-Megrahi case to the appeal court.
Subsequent to the introduction of the bill, the commission’s statement of reasons has been published by a newspaper. However, our legislation is general, and we consider that it is in the interests of ensuring transparency and openness in the justice system that there is a framework in place to ensure that, in future cases, the commission is able to consider releasing information relating to abandoned appeals arising from a reference that it has made, where there is a substantial public interest.
We have been keen to ensure that the framework that we put in place is as robust as possible. The al-Megrahi case, given its international nature, is one of the most complex cases—if not the most complex case—that the commission has had to investigate. We are confident, therefore, that our framework can be applied in a range of possible future cases.
We have made a number of changes to the bill to ensure that the framework is as effective and appropriate as possible, and that has been commented on in terms of the amendments—indeed, I made such a comment in my response to Lewis Macdonald’s intervention in relation to the first group of amendments.
Specifically, we have made provision to address the commission’s concerns in relation to information to which legal professional privilege or a common-law duty of confidentiality applies.
We have improved the provisions requiring consent from foreign authorities to make it absolutely clear that, where information held by the commission originates from a foreign authority, the commission must obtain the consent of that foreign authority, irrespective of how the information came to the commission.
In response to United Kingdom Government concerns, we have extended the consent requirement to cover information provided to the commission by the UK Government. That is necessary to ensure that future co-operation between the UK Government and Scottish police, the Crown Office and the commission is not put at risk.
The bill addresses matters that have arisen in two important but distinct areas of our justice system. It meets our absolute commitment to do everything that we can to ensure that the public has confidence that our justice system is fair, transparent and effective.
I move,
That the Parliament agrees that the Criminal Cases (Punishment and Review) (Scotland) Bill be passed.
15:54
I welcome the opportunity to speak in the stage 3 proceedings on the Criminal Cases (Punishment and Review) (Scotland) Bill.
At stage 1, Scottish Labour pledged its support for the bill’s general principles, but we took the opportunity to highlight some of our concerns around the complexity and relevancy of the bill’s provisions. While we are still happy to support the bill’s passage through Parliament today, we do so with a continued note of caution and a request that the Government commit to monitor the bill’s application on those grounds after it is passed today.
Both parts of the bill are commendable in principle. Part 1 addresses an anomaly in the law, which is that offenders serving non-mandatory life sentences are eligible to be considered for release by the Parole Board for Scotland earlier than those serving a comparable determinate sentence. Part 2 enhances transparency by allowing the Scottish Criminal Cases Review Commission to publish reports on cases that are abandoned subsequent to being brought to the appeal court. Both are positive steps. However, it is still difficult to tell whether either part 1 or part 2 will serve their stated purpose in practice as effectively as they ought to.
Throughout the Justice Committee’s evidence taking on the bill there was a feeling—even among members—that the bill was difficult to comprehend, as the cabinet secretary said, and that its outcomes were difficult to predict. It is questionable whether the Government has fully addressed those concerns.
The common concern of stakeholders about part 1 was that it sought to solve a complex problem by making it even more complex. We heard evidence from senior professionals in the justice system to that effect. David McLetchie, from the Conservative benches, pointed out the most striking example of that complexity when he said during the stage 1 debate that part 1 had been described as
“‘a tortuous system which is barely intelligible to lawyers, let alone to the general public’”.—[Official Report, 19 April 2012; c 8272.]
Although we accept that, in the absence of a simpler solution, part 1 is entirely necessary as a result of European law, I re-emphasise the important point that I made during stage 1, which is that our justice system must be, and must be seen to be, fair and comprehensible to not only those working within it but the victims of crime and the general public watching.
Does the member accept that we also heard evidence of the support that is provided to victims by the Crown Office and Procurator Fiscal Service, Victim Support Scotland and the like, and that it is not necessarily a requirement for victims to understand the minutiae of the legislation, as opposed to its intention?
In the evidence that the committee took, there was an acceptance that there is support in the courts for victims of and witnesses to crime, as John Finnie points out, but I think that there was also an acceptance that the understanding of sentencing generally was not perhaps as good as it could be and that further work might take place to aid that understanding among not only victims and witnesses but the general public.
In dealing with sentencing for serious crimes, part 1 applies to a sensitive area of our justice system that is often subject to extensive media coverage and public interest, so it is critical that the laws that we create around sentencing are clear and effective and that they achieve the desired outcomes. As I argued at stage 1, any other outcome could risk doing a great deal of damage to the integrity of our justice system. It is for that reason that I urge the Government to monitor closely part 1 as it comes into effect and to ensure that it not only addresses the anomaly that it seeks to address, but does so in a way that is seen to be fair and right.
As the Government is currently undertaking consultation to improve our justice system for victims of and witnesses to crime, I know that it is as keen as Labour is to ensure that sentencing laws are considered fair and right by those who have suffered at the hands of violent and dangerous offenders.
The exact function that part 2 will have in practice remains to be seen. Just before the stage 1 debate on the bill, a Sunday newspaper printed a redacted version of the Scottish Criminal Cases Review Commission’s statement of reasons in the Megrahi case. The publication of the statement of reasons seemed essentially to remove the need for part 2. It also appeared to answer many of the questions surrounding the impediment caused by existing data protection law.
Part 2 was devised in response to the Megrahi case. Although the power of publication will be on the statute book after the bill is passed, it is difficult to imagine a similar scenario to which it will be applicable. In the Megrahi case, widespread public and political interest pushed a desire for the publication of the statement of reasons in an appeal that was subsequently abandoned. The legislative process to provide transparency was overtaken by the actions of the media. Now the power will rest in law if circumstances arise in which it is needed again.
Although Labour is happy to support the passing of the bill, it is a difficult and complex piece of law that is still to prove its utility in practice. Part 1 still appears to offer a complex solution to a complex problem, and the relevancy and applicability of part 2 remain to be seen. Therefore I urge the Government to reflect on how the legislation was drafted and to commit to monitoring its application in our justice system.
Our justice system must be clear, comprehensible and relevant to those that it serves. Any law that falls short of those benchmarks must be questioned. I hope that the bill meets the high standards that are expected by victims and by all those with a stake in the success of our justice system.
Labour is happy to support the bill.
16:02
Parts 1 and 2 of the Criminal Cases (Punishment and Review) (Scotland) Bill deal with two distinct and unconnected areas of the law. I come late to scrutiny of the bill, but my colleague David McLetchie had the dubious pleasure of scrutinising it during its passage through the Justice Committee. I say “dubious” because part 1 of the bill deals with some extremely technical and complex issues involving punishment and sentencing. I will deal first with the less technical part 2.
Despite its general wording, part 2 of the bill was drafted with a particular instance in mind—namely, the case of al-Megrahi. Part 2 seeks to provide a framework by which the Scottish Criminal Cases Review Commission may disclose information about cases that it has referred to the High Court of Justiciary when the relevant appeal has been subsequently abandoned. Given the publication of the statement of reasons in the al-Megrahi case by the Sunday Herald earlier this year, part 2 has become largely redundant. However, due to technical reasons and the structure of the bill, part 2 cannot be deleted without prejudicing the whole bill. That being the case, the Scottish Government has merely made the best of a bad job. It maintains that because part 2 is drafted in general terms, it could in theory apply to future cases and that—hey presto!—it should be retained.
Part 1 seeks to address an anomaly in our sentencing law as identified in Petch and Foye. As a result of that ruling, an individual who was given an indeterminate non-mandatory life sentence became eligible for consideration for parole at an earlier stage in their sentence than they would had they been given an equivalent determinate—or fixed—sentence. In order to correct that anomaly, it has been necessary to look at the statutory rules that courts use when they calculate the punishment part of a life sentence. The punishment part refers to the part of a life sentence that a prisoner must serve in custody before they are eligible to apply for release on parole, and it includes both the retribution and deterrence aspects of the sentence.
To give an idea of the complexity of the statutory rules, I highlight comments that were made by Joanna Cherry QC, who appeared as advocate depute in the Petch and Foye case. She stated that the analysis of the current rules
“gave rise to the most difficult piece of statutory interpretation that I have had to engage in in my career”.—[Official Report, Justice Committee, 31 January 2012; c 865.]
The sad—but true—fact is that the new rules will add to the complexity of the arrangements for sentencing, which, as Jenny Marra correctly stated, has been described as
“a tortuous system which is barely intelligible to lawyers”.
Part 1 also raises another more fundamental point about our sentencing system. The bill’s approach involves identifying a determinate sentence that might notionally have been imposed. That is done by stripping out of the determinate sentence any element that is imposed for public protection, and significantly—this represents the nub of the problem—by applying the current rules on automatic early release. The pertinent point is that there would be no need for the bill if the SNP had acted on its 2007 and 2011 manifesto pledges to end automatic early release of prisoners.
The end of automatic early release was legislated for under the Custodial Sentences and Weapons (Scotland) Act 2007 but, despite the SNP’s promises, it has yet to be implemented. Furthermore, as far back as 1997, first the incoming UK Labour Government and then the Labour and Liberal coalition failed to enact the legislation to end automatic early release that the previous Conservative Government had ready to implement after the 1997 general election.
Usually, at this point, a member—
Will the member take an intervention?
Mark McDonald is on cue. Here we go.
I freely admit to not being a legal expert, but my understanding is that the bill is about eligibility for parole, and not about automatic early release. I am unsure where Margaret Mitchell’s train of thought is taking her, but I suspect that it is in the wrong direction.
Perhaps Mr McDonald has failed to grasp the complexity of the bill. It is the mandatory sentence part of it that is subject to automatic early release.
The previous Conservative Government introduced early release, but having quickly realised the error of the system, it left the legislation that I alluded to—for the repeal of early release—on the statute book in 1997. Fifteen years have elapsed since then, and during that time nothing has been enacted in Scotland to tackle automatic early release.
Although the Scottish Government is seemingly committed to ending automatic early release, it has delayed and procrastinated. Rather than take decisive action, it has dithered and has stated that it wants, before it acts, to be certain about the implications for the Scottish criminal justice system. Perhaps the cabinet secretary could, during the debate, shed some light on when the assessment of those implications will be completed.
At stage 1, the cabinet secretary said:
“The bill should not be viewed as an opportunity to make significant change; that will ... come in other legislation.”—[Official Report, 19 April 2012; c 8263.]
I merely ask when that further legislation will be introduced. Until then, on how many occasions will Parliament have to pass legislation that is akin to the Criminal Cases (Punishment and Review) (Scotland) Bill in order to correct other anomalies?
We now move to the open debate. I can allow speeches of around five minutes, with some time in hand for interventions.
16:09
First, I say that the provisions in part 1 are vital to addressing an anomaly and that they remain—despite all the criticism we have heard—unamended.
Messrs Petch and Foye have a lot to answer for—not least their vile crimes. As we know, the background of their appeal was the time that those who have been given discretionary life sentences or orders of lifelong restriction must serve before becoming eligible for parole. Clearly, the anomaly was unforeseen. However, by way of reassuring the general public, the Cabinet Secretary for Justice made it clear that such individuals still had to satisfy the Parole Board for Scotland that they pose no risk to the public. The bill will reinstate the judicial discretion that was removed by the appeal court ruling and will reduce the risk of decisions being overturned on appeal.
ECHR law has decreed that non-mandatory life sentences are different from other types of sentences and are imposed by courts after an assessment of risk to the public. The bill sets a framework for the punishment part of non-mandatory life sentences. First, the court must assess the appropriate period of imprisonment had the prisoner not been sentenced to life imprisonment or been made the subject of an order of lifelong restriction. That period ignores any period of confinement that is necessary for protection of the public. The court must then assess the appropriate period for satisfying the requirements of retribution and deterrence.
Under the bill, that part of the period of imprisonment—known as the punishment part—must be either half or some greater proportion of the period specified, up to the entire period of imprisonment. At that point, judicial discretion kicks in. A greater proportion than half can be specified only if the court considers it appropriate after considering the seriousness of the offence, or of the offence combined with other offences of which the prisoner has been convicted on the same indictment as that offence; after its considering whether the offence was committed when the prisoner was serving a period of imprisonment for another offence; and after its considering the prisoner’s previous convictions.
Any legislation that closes a gap must be welcomed. There has been much discussion about the complexity of the bill; indeed, the Justice Committee debated whether or not it is ECHR compliant. However, it was very much assured by the Scottish Human Rights Commission’s response that the bill meets the specific terms of the convention.
No one said that this was going to be easy. In its response to the committee, the Scottish Government made it very clear that it would consider any alternatives that were offered, but none was forthcoming. There is no simple ready reckoner. As I have pointed out, judges will have to consider a range of factors, but we suggest at our peril that our High Court judges have neither the wisdom nor the guile to make their way through the legislation.
Proportionality is as important in our judicial system as it is in life and is certainly vital to our sentencing policy. The public rightly expect assurances that they will be protected. However, as I said to Ms Marra, I do not believe that victims need to understand the minutiae of sentencing law; after all, they receive support from the Crown Office and Procurator Fiscal Service and from the victim information and advice service. Moreover, a victims and witnesses bill is heading our way.
I agree that victims and witnesses do not need to understand the minutiae of sentencing law, but does John Finnie agree that the public—both victims and witnesses—need to be able to appreciate what sentence fits what crime and at what point someone who has been convicted will be released?
Jenny Marra highlights two different issues: the sentence itself and the release period. The public want to know the bottom line: the judge will give it to them. Indeed, we heard in evidence that the advocate who is prosecuting a case will liaise closely with the family and victims throughout the process. Assurances already exist.
As for part 2, I could not disagree more with Margaret Mitchell; the provisions are not “redundant”. They were never about a specific case and, although they have been dressed around one case, they have further application.
That said, it is perhaps understandable that the bulk of the attention on the bill has been focused on part 2. There is an obligation for justice to be seen to be done and, as we have heard, the Scottish Government views the provisions as a commitment to openness and transparency in relation to the al-Megrahi case. The Justice Committee certainly viewed that the publication of the Sunday Herald on 20 March largely superseded the legislation, but the legislation still applies.
We heard comments about the Scotland Act 1998 and the reassurances that were given to the UK Government. I am certainly very happy for the bill to include terminology through which the UK Government is viewed as a foreign government and, if it is put on the same footing as foreign governments, I will be relaxed about that. Crime has to be fought across international borders and that requires co-operation, which is catered for by the bill. I will leave it at that.
16:15
I thank colleagues on the Justice Committee for the time and effort that they took to help me to understand some of the complexities of the bill. I also thank the witnesses who took the time to come to the committee and who patiently took us through the steps and explained the complexities and almost unfathomable detail of part 1 of the bill, and the critical part that it will play in the administration of justice.
It is important that sentencing be safely conducted in the knowledge that appeals against sentencing will be maintained at a minimum. I am sorry that Mr Finnie found Jenny Marra’s criticism to be slightly irksome, but it is important that we understand some of the shortcomings that still exist in the process, so that the next legislation can address them more competently.
My point was that no alternative was offered. If any alternatives had been forthcoming, they would have been considered.
I accept that. As Mr Finnie knows, the sheer complexity of what the committee faced left us exhausted and without alternative solutions to consider in the timescales that were available to us. Additional victims legislation is due to come before Parliament, and one hopes that we could consider some unfinished business in the longer term.
Part 1 of the Criminal Cases (Punishment and Review) (Scotland) Bill seeks to address an inconsistency in the law,
“whereby a life prisoner is likely to have a parole hearing earlier than a non-life prisoner sentenced for a similar crime”,
if the punishment part of the sentencing process of the non-mandatory life sentence is not properly considered and recorded. Although some evidence at stage 1 expressed concerns that the bill would add complexity to an already highly convoluted area of law, the area does require considerable attention.
Evidence from witnesses, in particular from Joanna Cherry QC, indicated 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”.—[Official Report, Justice Committee, 31 January 2012; c 865.]
That was a “strong factor” in her concern about the bill. It is important that witnesses and victims who come before our courts should leave them in the full knowledge that they have received the information that they deem to be necessary to understand the system. It is true that some witnesses want to know very little of the outcome, but others want to understand the rationale that lies behind it. There is a duty on Parliament to ensure that legislation provides for judges to offer sufficient information in the public courts.
Sir Gerald Gordon QC, who is the author of “The Criminal Law of Scotland”—a seminal document in terms of the application of criminal justice in Scotland—echoed Joanna Cherry’s sentiments in acknowledging 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.]
All that said, the challenges that were faced by the cabinet secretary in the circumstances of Petch and Foye were overwhelming and needed an immediate sensible response. To that extent, the bill puts us on a better footing and makes us able to defend, in any appeal, the processes that are administered by our judges.
As has been alluded to, part 2 of the bill has to some extent been superseded by the publication in March in the Sunday Herald of the SCCRC report, and the subsequent death of al-Megrahi further weakens the need for the legislation. Although we were told that it could be applied in cases other than the al-Megrahi case, it has never been fully articulated in what other circumstances the legislation could be used.
In any case, it is useful that facts that are gathered by the SCCRC as part of its process, and which are subsequently abandoned for whatever reason, could be made public in a fair and worthwhile manner in the future. As a result, I support the proposals that are outlined in the bill and I support the motion. [Interruption.]
I ask front-bench members to pay attention to members who are speaking in the debate.
16:22
I refer to my declaration of interests, as I am a member of the Faculty of Advocates.
It seems to have been a long time since we commenced consideration of the bill. In relation to part 1, we should remember that we are dealing with a bill that is designed to deal with the particular difficulties of the decision in Petch and Foye, and not a bill that is designed to deal with sentencing in general. As the policy memorandum states, the intention is to put back in place the policy that existed prior to the Petch and Foye judgment.
In essence, the aim is to give flexibility to judges in sentencing and to ensure compliance with the requirement, which arises from ECHR case law, to ensure that once the punishment part of a sentence has passed, a prisoner has the opportunity of regular reviews of his continued detention as well as the opportunity to identify properly the period that is required for punishment—or, as it also known, retribution and deterrence—as opposed to public protection.
The concerns that surfaced as a result of Petch and Foye were predominantly in relation to comparative justice, and to seeking to ensure that someone who has been sentenced to an indeterminate sentence is not released earlier than a prisoner on a determinate sentence whose situation might otherwise be the same. The bill seeks to correct that anomaly by giving a judge power, in specified circumstances, to apply a percentage that is higher than the normal 50 per cent—which equates to the normal early-release provisions for determinate sentences—to the stripped-down notional determinate sentence.
The proposed methodology has certainly caused concern, not only to the Law Society but to the Faculty of Advocates. There certainly seems to be an argument that, for the purposes of achieving comparative justice, the comparison should be with the actual determinate sentence that the prisoner would have received rather than with a notional stripped-out determinate sentence. That may, of course, raise issues about the extent to which, in a determinate sentence, there is an element for protection of the public, but that could give rise to a debate in itself and is a matter for another day.
The methodology in the bill is undoubtedly complex. Although I note the cabinet secretary’s comments that it is not unnecessarily complex, I believe that it will cause difficulties for the general public in understanding sentencing, even if it will provide a solution. However, it should not be forgotten that during the stage 1 debate the cabinet secretary invited alternative suggestions and, as John Finnie pointed out, no alternative was forthcoming. In the absence of working alternatives, we have what we have.
Nevertheless, I remain concerned about the overall complexity of the provisions and the degree to which they will be welcomed and accepted in the court system. I therefore ask the cabinet secretary to keep the operation of part 1 of the bill under review and to take on board comments about its operation in practice from interested parties and, perhaps, from the new Lord President.
Part 2 relates to disclosure of information that is obtained by the SCCRC. Since the Justice Committee embarked on consideration of the bill, the only person who was convicted in the Lockerbie investigation—Mr Megrahi—has died. Even before he passed away it might have been tempting to say that events had overtaken the bill, given the publication in the Sunday Herald of the statement of reasons for appealing his conviction. When that happened, it looked like part 2 of the bill was obsolete and redundant, as members have said. However, we must not forget that this is not all about Megrahi; part 2 has a wider general application and merited on-going consideration by the committee and the Parliament. I rather doubt that it will be much use in practice, but I hope that our deliberations will prove to have been helpful, particularly in relation to data-protection issues.
In relation to a posthumous appeal, if a member of Megrahi’s family wants to take matters further they should appreciate that in the first instance it is for the SCCRC to decide whether it is in the interests of justice that a reference to the High Court be made. In the circumstances of an abandoned appeal, that is likely to be far from straightforward.
I am pleased that the Government sought to clarify matters in relation to legal professional privilege and to acknowledge concerns by lodging amendments on which we voted this afternoon.
16:26
As I said in the stage 2 debate, the bill is needed to remedy the judgment in Petch and Foye v Her Majesty’s Advocate.
I do not have a legal background, so I welcomed members’ input in assisting my somewhat limited understanding of a complicated bill. It is disappointing that there is a loophole in our justice system that means that a prisoner who has committed a crime that is so serious that it merits a life sentence could be eligible for parole earlier than people who are serving sentences of a fixed length. Many members talked at length about that.
I am satisfied that the bill will close the loophole, but I have reservations about how it will do that. It will remedy a loophole in the sentencing structure, but does not give a clear legislative solution, because what is being proposed is too similar to what has gone before. The new legislation will be every bit as difficult to understand and interpret as the existing legislation.
Sentencing needs to be less prescriptive and sentencing requirements need to be clearer and more appropriate in order to make it easier for the public and victims of crime to understand how and why a sentence has been given. Most of my Labour colleagues who are present were also in the chamber last week when we debated support for victims and witnesses. I agreed with the suggestion that victims and witnesses need to be given more information to help them to understand why decisions are made and why sentences are handed down. The provisions in the bill are unnecessary complex and will make it harder for victims, witnesses and offenders’ families to understand why a sentence has been given.
The addition of such a complex piece of legislation to our justice system will also make it harder for lawyers and judges to interpret the law. I agree with the Justice Committee and the Law Society of Scotland that the bill is acceptable as an interim measure to address the concerns that immediately arise from Petch and Foye, but an opportunity has been missed to simplify a complex part of law. Our sentencing legislative framework should be reviewed in its entirety and made much clearer and easier to understand.
Part 2 of the bill was intended to allow publication of the reasons behind the decision to refer the Abdelbaset Ali Mohmed al-Megrahi case to the High Court as a possible miscarriage of justice. Arguably, part 2 of the bill has now been made redundant, because the reasons for the appeal’s 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, but the main reason why part 2 was introduced was to facilitate the Megrahi case. The bill’s scope is very general and can apply to cases in the future other than the Megrahi case. That gives the Scottish Government an opportunity to consider whether the bill’s provisions are strong enough to apply in other cases. 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, and they will do that successfully, but I still think that the bill may add complexity to an already overly complicated area of law. However, I will support the bill, as will my colleagues in the Labour Party.
16:31
I spoke in the stage 1 debate on the bill and I am pleased to have been given the opportunity to speak in the stage 3 debate.
It appears that the bill will be passed this evening, given the comments that Opposition members have made.
At stage 1, I said in response to comments that David McLetchie made, which Jenny Marra raised, that the litmus test of any legislation is not that it makes easy bedtime reading, but that it delivers outcomes that can be seen to deliver benefits. That litmus test has been applied, and it has been passed in parts 1 and 2 of the bill.
Jenny Marra spoke about the need to make legislation more accessible to the public and the possibility that the legislation’s complexity might make it unintelligible to victims and witnesses who are involved in the legislative process. It will not have escaped members’ attention that, only last week, we discussed issues relating to victims and witnesses with a view to the Government’s proposed legislation on enhancing and improving support for victims and witnesses. I spoke in that debate and mentioned the pilot that Victim Support Scotland is running in the Tayside area. I think that there are pilots in a couple of other regions as well, but Tayside is, obviously, in North East Scotland, which I represent. In that pilot,
“Victims and witnesses will be supported through, and gain speedier access to, case progress information”.
The aim is also to ensure that information is given to them “in an understandable way.”
We should not necessarily believe that victims and witnesses must be able to read and understand legislation themselves; there is often a need for organisations such as Victim Support Scotland to offer such support to them. I think that the issue of how the Government can ensure that victims and witnesses have the support to be able to understand the complexities of the legislative process will be on the Government’s radar as matters progress. We recognise that the process is often complex for members of the public.
I thank the minister—or, rather, the member—for giving way. I have promoted him.
To clarify, it was certainly not my intention to say that the legislation should be bedtime reading for me, or that it is for victims or witnesses of crime to understand the legislation. Indeed, the legislation needs to be complex in this case, but the guidelines and information that are given to victims and witnesses of crime in court and the justice process should be legible and understandable, and they should aid their understanding of the process.
I welcome the member’s clarification. I think that we would all agree with that; indeed, that was the notion around which I framed my remarks during last week’s debate.
I turn to a point that was made by Margaret Mitchell and the introduction into the debate of automatic early release. That issue was surprisingly absent at stage 1, given how important it apparently is to understanding the reasons behind Petch and Foye. It was absent in the discussions at stage 1 because it is not relevant: the issue is comparative justice. Whether an offender is serving a full determinate sentence or is released early from a determinate sentence is irrelevant. The relevant issue is the need to strip out the element of public protection that gave rise to the anomaly that the Government has dealt with in the legislation.
Will the member give way?
I understand entirely that Margaret Mitchell may think that I have misunderstood the complexities of the legislation, but I contend that perhaps she has misunderstood those complexities and has mistakenly brought automatic early release into the debate. She will have an opportunity to clarify and reflect on that in summing up, but I suggest to her that automatic early release is a red herring in the debate and ought not to have been brought into consideration at this stage.
Will the member give way?
I give Margaret Mitchell the opportunity to clarify and perhaps withdraw her comments.
Does the member accept that automatic early release was a factor in the calculation in the case that led to the anomaly?
We are talking about eligibility for parole, which in my understanding is not the same as automatic early release.
Although only a small number of cases are affected by the issue that was raised in Petch and Foye, we should not lose sight of the fact that those cases relate to significant and serious crimes, hence the application of a non-mandatory life sentence.
That is why it is extremely important to introduce legislation at this stage, rather than to examine some of the wider sentencing issues that Mary Fee raised in her speech. It is important that we close that loophole now, on the basis that it relates to extremely serious crimes and to the need to ensure that the public are appropriately protected from those individuals.
With regard to addressing anomalies, part 2 has been described as largely redundant. That would be a fair assumption if we were to assume that it related only to the al-Megrahi case, but—as has been mentioned—the general framing of the bill means that it can be applied in future cases.
Whether such cases arise is neither here nor there: the fact that they are now provided for is the important thing. It is better that we have those provisions and perhaps do not need them in future than that we might need them and do not have them on the statute book. That is why it is important that we pass the bill, regardless of whether part 2 is seen by some as irrelevant, which is not necessarily the case.
I look forward to the bill being passed.
16:37
The Scottish Conservatives will support the bill at stage 3, and I welcome this afternoon’s debate. My closing remarks will focus on the provisions in part 1, which seeks to address an anomaly in sentencing—as identified in Petch and Foye v HMA—that must be rectified.
A number of members have noted the complexity of part 1, and I make no apology for again highlighting the comment that was made at stage 1 by James Chalmers of the University of Edinburgh. He stated:
“the Bill seeks to create a tortuous system which is barely intelligible to lawyers, let alone to the general public”.
That point is important, not because lawyers might find the bill challenging to understand—although clarity of law for the benefit of those who advise their clients is to be welcomed—but, crucially, because the public would struggle to understand it.
Despite Mark McDonald’s rather skewed view and bizarre comments, Parliament should aspire to produce legislation that is readily understandable to the public. The Scottish Government made that crystal clear in its recently published consultation on the proposed victims and witnesses bill. The consultation places great importance on the need for victims to understand how sentencing decisions are made. It states:
“The Government is considering ... what ... practical measures could be taken to try and improve public understanding of sentencing.”
That being the case, the obvious question is whether the Scottish Government gave the same consideration to the drafting of the complicated sentencing rules in the bill that is before us today.
Furthermore, the bill deals with two distinct and unconnected areas of the law, as the Justice Committee noted in its stage 1 report. Although that approach is not without precedent and can be justified on pragmatic grounds, it has the potential to create handling difficulties when legislation is considered. Perhaps more important, the combining of unconnected provisions in one bill makes finding the law on a specific matter more difficult for those who use the law. For both those reasons, the practice should not be encouraged. Just as the Parliament should aspire to the objective of producing clearly drafted legislation, it should aspire to that of ensuring that the law is not just easily understood, but easily identifiable.
In giving a custodial sentence as a disposal, the judiciary seeks to achieve public protection, retribution and deterrence. It is widely recognised and conceded that the bill will make an already complex sentencing process more complicated, which means that the desired retribution and deterrence are that much less likely to be achieved. In such circumstances, none of us, least of all the Scottish Government, whose responsibility it is to get things right, can take much comfort from or pride in the passing of the bill.
16:41
As we have heard, all parties recognise that part 1 of the bill is necessary, but Labour members also wish to acknowledge the views of those legal experts who gave evidence during the bill’s consideration who were concerned about the complexity of the new processes that are to be introduced and who believe, as Mr MacAskill has previously conceded, that further legislation may be needed in future to resolve the same issue.
As Graeme Pearson said, the anomaly that exists in the justice system is so serious that the issue must be addressed in a timely fashion. For that reason, although it is possible that more prolonged consideration might produce a different outcome, we will support the bill as it stands, but we are mindful of the warning that it may prove not to be fit for purpose.
The Law Society of Scotland said in its submission that part 1 would not give rise to a clear legislative solution, because the
“calculation and comparison exercises proposed by the Bill are similar to what has gone before.”
Although the bill will resolve the anomaly that was highlighted by the Petch and Foye case, it is unlikely to prove to be a long-term solution. It will provide the short-term fix that is required, but the processes that it puts in place may prove to be more complex, and perhaps even more problematic, than the status quo.
However, we agree that the status quo is not an option. An anomaly exists at the heart of the Scottish justice system, which has to be fixed to restore confidence in the fact that offenders are indeed serving the sentences that the courts have imposed on them.
John Finnie and Roderick Campbell rightly noted that no amendments were lodged to part 1. We considered and were sympathetic to the Law Society’s approach and its efforts to identify a simpler way of resolving the anomaly. Although, as the cabinet secretary highlighted, ECHR compliance is important, the jury is out on whether the Government’s approach will succeed in improving public confidence in the system. Having considered the alternative approaches, we will support the approach that the Government has favoured, but we think that it is important to keep in mind some of the criticisms.
The issue is one of public confidence. As Jenny Marra rightly highlighted, it is not just about lawyers being able to understand the minutiae of the legislation; it is about those who are affected by the justice system being able to understand its impact and its consequences for them and for those who are found guilty of offences against them.
Coverage of the Petch and Foye case gave many people the distinct impression that dangerous criminals were to be released earlier than the courts had intended. As has been said, the final decision on release rests with the Parole Board for Scotland. As the cabinet secretary said, a decision to release is made only when the board is satisfied that the offender poses no further threat to the public.
The bill will give the courts greater discretion when it comes to calculating indeterminate life sentences, but there are some risks attached to that. The complexity of the directions that are issued to judges on calculating indeterminate life sentences is an issue in itself. John Finnie said that we should not assume that High Court judges will not understand the bill; I do not think that anyone would assume that. The difficulty arises if the legislation is so complex that the public do not understand it. The fact that judges are obliged to go through the process to reach a conclusion runs the risk of reducing public confidence in the process and in the system.
Double counting in calculating the length of an indeterminate sentence might be a problem—that point has been highlighted. The seriousness of an offence should be counted once, not twice. If double counting occurred, the risk is that we might end up with a different result. That leads to another risk—that human rights concerns could leave the system open to further challenges and force us to address the issue again, whether or not we wish to do so.
As Jenny Marra and Roderick Campbell said, careful monitoring will be needed after the bill is passed. I would welcome the cabinet secretary’s response on monitoring the bill’s operation.
The bill will amend one small part of the process to solve one problem. The problem and the solution alike illustrate the need for Scotland’s sentencing system as a whole to be re-examined. James Chalmers of the University of Edinburgh’s school of law has been quoted. In his evidence, he made the point that the bill
“serves as powerful evidence of a sentencing system in need of much more far reaching review and reform.”
Sentencing has been on the Parliament’s agenda for some time. The Criminal Justice and Licensing (Scotland) Act 2010 allowed for the creation of the Scottish sentencing council, which would have been ideally suited to the circumstances of the case that we have discussed. It is disappointing that ministers have yet to set in train a wider review of sentencing and have yet to act on the option of creating the Scottish sentencing council.
The language in part 2 of the bill is more straightforward, although it has caused its fair share of debate and controversy. We have heard views about whether part 2 has been rendered irrelevant by the fact that a newspaper made public the SCCRC’s report on Megrahi and by the subsequent death of Megrahi. However, the bill is in front of us. The circumstances in which part 2 would be called on are difficult—but not impossible—to imagine, although it is certainly difficult to imagine another appeal being abandoned by such a high-profile appellant in a way that attracted such attention and public concern. However, such circumstances might arise so, having come thus far, it is appropriate to proceed to put the measure on the statute book.
There is no great problem in making available the information that relates to an investigation, provided that doing so is appropriate and safe. The clarification of the data protection rules has been highlighted. Perhaps that was an unintended positive consequence of the bill. It is important that any such release of information should safeguard individuals and not breach legally enforceable human rights.
I was intrigued by John Finnie’s interpretation that the amendments to part 2, which were agreed to by all parties this afternoon, in some way place the UK Government on the same footing as a foreign Government. I invite the cabinet secretary to clarify that the amendments will protect the UK Government’s position in relation to the release of information rather than impinge on its prerogatives, as Mr Finnie might have wished to suggest.
If part 2 goes down in legal history, it will do so as a measure that was passed after it was no longer required. Only time will tell whether it will have any future use.
By contrast, part 1 might survive on the statute book for only a relatively short time. If the processes that it creates turn out to have made the wheels of justice grind in a way that is more complex, more cumbersome and less transparent, a future Government might decide on a simpler and more direct approach. Better still, the processes that part 1 covers could be addressed as part of a wider review and reform of our whole sentencing system. Such a process should start sooner rather than later.
With those caveats, we are content to support the bill.
16:50
There has been a great deal of unanimity in the chamber today. Starting with Jenny Marra and continuing thereafter, we have had a plea for the legislation to be as simple as possible and to be understandable to the general public. I fully appreciate that point. The great and the good and many others have been rolled out in support of that view and have pled in its favour.
I fully accept that, irrespective of whether we are dealing with criminal, commercial or consumer legislation, it should be as understandable as possible. Wherever possible, it should be understandable to the ordinary man and woman in the street, not just to those who are privileged enough to possess a degree in law. Sadly, that cannot always be the case. Some aspects of the law are by nature very complex, and that will always be true.
Equally, if we did not have complex law, we would not need lawyers; we would need only pleaders. In the past, Parliament has passed legislation that we thought was relatively straightforward. We thought that it was relatively straightforward to say that it was iniquitous that those who suffered from pleural plaques should not be given the opportunity to obtain recompense. Some lawyers, including some eminent lawyers, thought that that was contrary to the powers of the Parliament and took the case as far as the Supreme Court. It is not only that law should be, wherever possible, understandable; it can all be challenged equally. I fully accept all the points that were made about law being as understandable as possible. That is the Government’s desire and, to be fair, it is the desire of every Government, whether present or past, or north or south of the border. Sadly, however, some laws are, by their nature, very complex.
We should clarify the point. We have called not for the legislation to be simpler but for sentencing to be simpler and more easily understood by witnesses and victims of crime. That has been our call throughout the scrutiny process.
To be fair, that was the aspect that Ms Marra raised, but many other people, including some in her party, raised the question of the law being unnecessarily complex. Mr Pearson mentioned Sir Gerald Gordon, who lectured me and whose textbook I had back when I studied law. I appeared in trials in the sheriff court in Edinburgh and elsewhere along with Michael Meehan. I instructed Joanna Cherry QC when I was a practitioner. They were all cited, along with James Chalmers, as people who said that the law was unnecessarily complex.
I wish that it could be simpler, but it cannot, because it is a complex area of law. We should also remember that we are dealing with an appeal case in which the judge’s first decision was challenged, so one judge was accused of getting it wrong. The matter went to our highest court of criminal appeal, which was divided. The decision was a majority decision; there was no unanimity across the bench. We are talking about a case that challenged even our most esteemed senior judiciary. Some think that the decision was not right, which is why there was a majority judgment.
As John Finnie and others have said—and I do not wish to be churlish here—no one has come forward with an alternative. We believe that the legislation will address the position that was taken by the majority of the appeal court judges. I regret that the legislation is not simpler, but we are talking about a complex area of law. However, it is complex because judges apparently got it wrong the first time, other judges could not unite on the matter, and we have had to act to address the situation. That is where we are.
I assure Jenny Marra and Roderick Campbell that we will keep the matter under review. I am due to meet the Lord President tomorrow, which will be the first time since he was put into that esteemed office, and I assure members that I hope to be able to tell him that we have passed the bill. I will raise with him the issue of the complexity of the law and say that I hope that we can work with the appeal court that he, as Lord Justice General, will chair. When we appoint a new Lord Justice Clerk, we will also discuss the issue with him or her.
Part 2 of the bill is on the SCCRC. There was an issue that we had to address. The bill was drafted in a general way, although it was always clear that the driver was to ensure that the commission’s report on al-Megrahi was published. We believe that there is a gap in the law. I think that Lewis Macdonald said that it is difficult to speculate on circumstances that might arise, but they might arise. Some people have gone to the SCCRC and subsequently not proceeded with an appeal. Those were not matters of public interest, so I do not think that anybody is lamenting the fact that the information is not out there in public, but there might be such an instance in due course. It is therefore appropriate to have a legislative framework that allows for that.
It has been mentioned that the Sunday Herald published what are admitted to be the matters that have been referred to by the SCCRC. Something is fundamentally wrong if the SCCRC has to publish matters that it is precluded by law from publishing, resting on an assurance from the Lord Advocate that he will not prosecute. That cannot be right. It cannot be appropriate that something that is so important to our legislative framework as the SCCRC should have to rest on a nod and a wink from the Lord Advocate and an assurance that he will not prosecute if it publishes information. There is something fundamentally wrong with that.
The bill ensures that we deal with cases that might arise—although we cannot say what they may be—and not simply the al-Megrahi case, but it also deals with the fundamentally wrong situation that, in a case as important as the al-Megrahi one, the SCCRC would breach the law in publishing information, albeit that the Lord Advocate in his kindness and wisdom might say that he would not prosecute. That cannot be appropriate in our system. It is therefore appropriate to put the matter on a solid legal basis so that the commission can publish what it feels to be appropriate.
We have included measures dealing with foreign Governments and the United Kingdom Government. Mr Macdonald need have no doubts that the only reason why we included the United Kingdom Government was to satisfy the points that have been raised with me by Michael Moore, the Advocate General for Scotland and Foreign and Commonwealth Office ministers. However, let us be clear that what the Sunday Herald published could be superseded. Therefore, as well as ensuring that we give a legal basis and framework to the SCCRC, we must consider what would happen if we did not proceed and the United States Government said that it did not mind if more information was published, or if the UK Government said that the Sunday Herald or the commission could publish what it liked and it would not interfere.
The bill ensures that there is a legal or statutory basis for the commission to do what has simply been homologated by the Lord Advocate. We give the commission surety that, if anything should change, it would be doing nothing untoward.
Will the cabinet secretary confirm that the situation remains that, if another Government chooses not to give consent, important matters might be withheld?
Absolutely. The assurance that we have given in relation to foreign Governments and the United Kingdom Government, which was raised with us by the Lord Advocate, is fundamental. It would undermine the whole basis of co-operation on law enforcement if information would not be given—we would not provide information if such an approach were reciprocated. It is therefore important that we give that assurance.
The Tories continued their mantra chant on early automatic and unconditional release. The Tories have an opportunity to debate that in the Parliament tomorrow, although they have chosen not to do so. It is important that they make their point in debates, despite the fact that we continually point out that it was the Tories who invoked the automatic early release provisions. The learned Kenneth Clarke, who has held many offices of state and whom I meet and find personable, does not seem to think that it is necessary to proceed in that way. In many ways, he does things vastly differently from me, but he is sometimes much more liberal.
The bill is nothing to do with automatic early release; it is to do with comparative justice and ECHR cases. The Tories have a right to bring their points to the Parliament, but they bring the issue of automatic early release into every justice debate. It would have been more appropriate to have had a debate on the issue in their debating time in the Parliament, rather than raise it in a debate that has nothing to do with the issue.
The bill addresses a complex and difficult area of law. For those who know—as I think members know—what Petch and Foye were convicted of, there was something manifestly wrong in the situation and we had to sort it out. On that basis, I am grateful to members for their support for the bill. It is complex and it will be kept under review, but it provides the opportunity for the High Court and the SCCRC to deal with matters appropriately.