Criminal Justice and Licensing (Scotland) Bill: Stage 1
The next item of business is a debate on motion S3M-5177, in the name of Kenny MacAskill, on the Criminal Justice and Licensing (Scotland) Bill.
I begin by thanking members of the Justice Committee and their clerking team for their work in preparing the stage 1 report, which was published a couple of weeks ago, on the Criminal Justice and Licensing (Scotland) Bill. The bill includes provisions on more than 80 topics. In the time available this morning, I can cover only some of the key parts of the bill, although I am sure that many parts will get a mention during the debate.
Tackling the scourge of serious organised crime in our communities has been one of the Government's top priorities. That is why the serious organised crime task force was established. We are determined to tackle those who take part in serious organised crime at all levels, from the generals at the top, to their lieutenants, down to the foot soldiers and the fixers who turn a blind eye to the illegal dealings of their clients.
We welcome the committee's strong support for the intentions underlying the serious organised crime provisions in sections 25 to 28. Equally, we recognise the concerns expressed by the committee and others about the definitions contained in some of those sections. Although some consider that the definitions are too wide, by its very nature, serious organised crime is wide ranging and evolving. From trafficking and peddling drugs that bring misery to our communities, to lower-level but high-volume crime, serious organised crime comes in many forms. That is why the definitions may have to be wide ranging.
In his stage 1 evidence, Chief Constable Stephen House of Strathclyde Police said:
"If we tighten … too much we will miss issues and new crimes. Criminals might even exploit the definition to ensure that activity does not fall within the definition of ‘serious organised crime'".—[Official Report, Justice Committee, 26 May 2009; c 1906.]
We need to keep one step ahead and be able to anticipate the next form of criminality. However, the definitions need to be appropriate, and we are continuing to consider them with a view to lodging amendments at stage 2.
The scope of the "failure to report" offence in section 28 has caused some concern. Let me be clear: we are not trying to criminalise people who inadvertently discover during the course of their employment that another person may be involved in serious organised crime. Equally, however, we are clear that the offence must capture those people in professional occupations who knowingly contribute to and profit from the ends of serious organised criminals or who are used as fixers. The law should come down hard on them, and that is why section 28 is in the bill.
Following the work of Lord Coulsfield's independent review, the bill includes provisions that will establish a statutory regime for disclosure of evidence in criminal trials. That statutory regime is crucial, as it will provide certainty for all those involved in the court process about which arrangements should be followed in that important area and will help to uphold justice for all.
We are pleased that the Justice Committee is generally content with the shape and content of the disclosure provisions. However, concerns have been expressed that some provisions are too complex and that others are too detailed. Although we want provisions that provide certainty and clarity for practitioners and accused persons, it is not our intention to impose an unnecessary burden on the police and prosecutors or to create an inflexible system. Disclosure is a simple duty to understand but a complex subject for which to legislate. Attempts to set out the duty in a simple form often miss critical elements. That said, we accept the concerns that the provisions are too complex, and that is why we will seek to amend the bill at stage 2 to simplify the provisions and to ensure that they are both comprehensive and well understood.
The bill takes forward our manifesto commitment to establish a Scottish sentencing council, which will have the power to develop sentencing guidelines to help to improve consistency, transparency and public confidence in sentencing. We are pleased that the committee expressed support for our aim to improve consistency in sentencing and recognised the need to tackle the poor public perception of sentencing. People have the right to understand why a particular sentence has been given in a specific case. We believe that the sentencing guidelines that the sentencing council produces will help to improve public understanding of, and therefore public confidence in, our justice system.
In the evidence that was taken at stage 1, there was much support for the creation of a sentencing council from a number of important criminal justice organisations. We believe that it is important that representatives of broader society sit on the sentencing council and that the council takes into account the views of others who have a role in the administration of criminal justice. The stage 1 report sets out the concerns from some quarters about the impact of the sentencing council on judicial discretion. We regard the council and its guidelines as a resource for the courts, but we are giving further consideration to the committee's thoughts on how best to achieve our aims while maintaining the independence of the judiciary.
The bill provides a tough new community payback order sentence as a replacement for a number of existing community penalties. The community payback order will require offenders to repay communities for the damage that is done by offending and will help to tackle reoffending rates with quick justice. The stage 1 report supports the creation of the payback order. We welcome that conclusion, which acknowledges the facts about the effectiveness of community sentences versus short prison terms. It also reflects the public view, given that 84 per cent of people in Scotland think that community sentences are a good idea for minor crimes.
However, the committee expressed some concerns on the matter in its stage 1 report. It asked us to consider whether we have the terminology of "payback" right. The Scottish Prisons Commission was clear—as we are, and as we think the committee is—that payback to communities should be the focus of our community justice system.
I entirely accept the cabinet secretary's point, but does he accept that the important rehabilitation element of the community payback order is not entirely captured in its name?
For the first time, we will be able to provide for that in up to 20 per cent of an order. That is a significant indicator that we recognise that, although one aspect of an order has to be for the person to pay back for the harm done, we must also tackle the root problem of their offending, be that literacy problems, drug or alcohol addiction, or any other matter that the sheriff regards as relevant. We believe that we have struck the right balance in ensuring that people atone and are punished for the crimes that they commit; equally, as a society, we seek to assist offenders to tackle their underlying problems.
We see the importance of ensuring that the terms that we use accurately reflect the activity that the new community sentence will involve and that they do not create confusion. We will consider that further before stage 2.
The committee's report highlights the need for additional resources to make the community payback order work. We recognise that, and we have provided significant extra funding for community service both this year and next year, to make the system tougher and tighter. The new funding will also help to provide for the transition to the new regime. As for the calls for the new sentence, when it is in place, to receive more additional funding, we have set out our budget for the next financial year and we have already provided extra resources. We absolutely share the Justice Committee's conclusion that the new sentence must be adequately resourced; that will be our priority.
On funding, given that there has been no movement in the community justice service line in the budget, what lines will the cabinet secretary cut in order to fund his policy of scrapping short sentences?
We are not creating the problems of cutting budgets. That comes from Westminster, and we have to address the consequences. As Mr Kelly knows, we are sitting down with the Association of Directors of Social Work and the community justice authorities, which are involved in front-line services. They are saying that it will be difficult but that they are satisfied that they will manage. Perhaps he should have more faith in the staff who work in community services and local government, rather than continually disparaging them.
Will the cabinet secretary take an intervention?
Not at the moment.
Alongside the community payback order, the bill proposes the introduction of a statutory presumption against the imposition by the courts of prison sentences of six months or less. We read the stage 1 evidence and the committee's conclusions on that proposal with great care, and we found nothing that explains why some members of the committee oppose it. Many witnesses presented the committee with evidence that demonstrated the limitations of short custodial sentences. All members of the committee accept the evidence, as articulated in the stage 1 report, that
"short prison sentences do not normally achieve much by way of rehabilitation",
that they have
"limited effect as a deterrent",
and that any respite that they provide for victims and communities
"is only for a limited period".
We agree with all that.
The Sheriffs Association gave evidence that short prison sentences are the only appropriate option in some circumstances, and that, in particular, custody must be an option for breach of a community sentence. We agree, and the bill acknowledges that point and contains safeguards that address it. Let me be clear that courts will still be able to impose sentences of less than six months. There will be no statutory bar to that.
However, the committee's report gives several reasons to support the presumption against short prison sentences. David McKenna, the chief executive of Victim Support Scotland, which speaks up for those who suffer from crime and whose lives are blighted by it, said just last week:
"as an organisation we supported the introduction of robust and timeous community penalties for offenders in non-violent, non-serious cases, so we're a bit disappointed that the committee has taken the decision not to support this proposal within the bill … Certainly we hope that they can be assured that this will work for Scotland, because I think this is a golden opportunity really to take a radical and new view of how we deal with crime in our communities, making it better for communities but more importantly making it better for victims."
When we talk about timeous community sentences, it is not the case that only a fraction of community sentences start within the seven-day target set by the cabinet secretary? When Victim Support Scotland gave evidence to the committee, it said that there should not be community sentences for, for example, serious offences, violent offences and assaults, yet the cabinet secretary's presumption against custodial sentences will apply to indecent assault, assault, and two thirds of convictions for knife crime.
There are two points there. First, Richard Baker criticises the time lag. That is the current system, which we inherited from him and his predecessors. That is why we are bringing in measures to improve the system and to address questions of timing. If he is critical of the system, that criticism should lie at my predecessor's door.
Secondly, I remind Richard Baker that we are talking about a presumption. In cases in which a sheriff believes that it is appropriate for respite care to be given, that a breach has occurred, or that no other sanction can be applied, we will fully support that sheriff in their decision. Richard Baker should perhaps think about supporting those who speak for and represent victims, who have been speaking out about what will really change things.
Members should remember that the status quo is not working. We inherited the revolving door, and communities are blighted as a result. For that reason we have established a broad coalition, from the former First Minister Henry McLeish, to the Scottish Prisons Commission and people such as David Strang, down to David McKenna. Yet some members of the Justice Committee have been unable to follow where the evidence led. Members agreed that the priority for prison should be dealing with offenders who commit such serious acts that no other form of punishment will do. Committee members acknowledged that short prison sentences are of limited usefulness, but that specific instances may arise in which a short prison sentence may, nonetheless, be the only option. Committee members followed exactly the same path of reasoning as the Prisons Commission did, and as we have done in making the proposals that are set out in the bill. Therefore, why do some members of the committee and of the Parliament not support the presumption against short prison sentences?
Will the cabinet secretary take an intervention?
I am sorry; I must make some progress.
No good reason was found to stand against the presumption, and we call on the members concerned to support that important provision.
Sections 58 to 60 make changes to the operation of the system that allows the retention of forensic data in the justice system. The forensic data working group has made good progress with developing a list of relevant sexual and violent offences committed by children that will trigger retention of forensic data under section 59. It is important that we get those provisions right, so careful consideration must be given to them. As requested by the Justice Committee, we aim to provide a draft list of the relevant offences before stage 2. GeneWatch UK submitted stage 1 evidence to the effect that DNA samples should be destroyed once DNA profiles have been obtained. The forensic data working group is considering the issue. In considering the retention and use of forensic samples, we are determined always to strike the correct balance between the rights of individual citizens and the need to keep communities safe.
This is a licensing as well as a criminal justice bill. In it, we are implementing the recommendations of the Civic Government (Scotland) Act 1982 task group and are modifying a number of provisions in the Licensing (Scotland) Act 2005 to reduce costs, shorten process times, remove unintended barriers and close loopholes.
A number of provisions in the bill give rise to a need alter reserved legislation, and we are working with United Kingdom Government departments so that a section 104 order, under the Scotland Act 1998, can be made at the appropriate time.
The Criminal Justice and Licensing (Scotland) Bill is a comprehensive bill that shows this Government's ambition to help make Scotland a safer and stronger land, and to change the status quo, which is clearly not working.
I move,
That the Parliament agrees to the general principles of the Criminal Justice and Licensing (Scotland) Bill.
I call Bill Aitken to speak on behalf of the Justice Committee.
It is with pleasure, compounded with relief, that I present the Justice Committee's stage 1 report on the Criminal Justice and Licensing (Scotland) Bill. The relief is caused by the fact that a long, complex and convoluted experience is now at an end. My pleasure is formed from my belief that we have produced a fair, balanced and measured report on what is undoubtedly a complex and far-reaching piece of legislation.
It is a measure of that complexity that the committee required 24 meetings to deal with the bill, taking evidence from well over 50 witnesses. They included the Lord Justice General, the Lord Justice Clerk, the Sheriffs Association, senior police officers, voluntary groups, academics, the Law Society of Scotland, the Faculty of Advocates, the Lord Advocate and the Solicitor General. We also heard from local authorities, licensed trade representatives and, of course, the Cabinet Secretary for Justice. I put on record the committee's appreciation for those who gave of their time so willingly and for the innumerable written submissions that we received. All were carefully considered and appreciated.
Before I deal with the content of the committee's report, I also thank the members of the committee. My colleagues applied themselves with typical commitment and professionalism. I thank the clerking team, led by Andrew Mylne and Anne Peat, who kept up with the demands that the committee made of them—and with the frequently unreasonable demands of the convener.
Many of the measures in the bill are non-contentious and represent a valuable contribution to the modernisation of the law. Other aspects are controversial. Perhaps the most difficult issues to deal with were those that caused concerns across party lines, on which I hope there will be some movement before stage 2.
The controversy is largely restricted to part 1 and relates to sentencing. There might be no meetings of mind at the end of the process, but the divisions between us are perhaps less significant than some might think. The committee was lukewarm, it is fair to say, on the proposal that the bill needs to state the purposes of sentencing, as its purposes and principles are well established, nor does that proposal sit comfortably with the proposal that sentencing guidelines will be issued by the Scottish sentencing council.
It is easy to see the Government's direction of travel in relation to the sentencing council, which has perhaps been formulated in response to a public perception of inconsistency in sentencing. The committee was not convinced that clear, objective evidence exists to substantiate that perception. There is an inevitable tension between such a council and the principle of the separation of powers, and the committee could not form a consensus around how that tension could best be addressed. A majority of members took the view that sentencing guidelines developed by any sentencing council should take effect only after formal endorsement by the appeal court; an alternative suggestion was that, if there is to be such a council, its composition should have a judicial majority. I think it is significant that, when he gave evidence to the committee in Alloa, Henry McLeish downplayed the significance of a sentencing council, stating that he had "no strong views" on how it should operate.
The issue of community payback orders was not particularly controversial, and the committee broadly supports the creation of such orders, which should simplify and strengthen the current range of community sentences. The committee was firmly of the view that the orders must be adequately resourced. We found it difficult to be satisfied as to whether sufficient funds have been or will be made available for them. The level of take-up of the orders will be closely linked to the views of sentencers as to their effectiveness, and their effectiveness will be related to whether there is adequate funding.
The committee was strongly of the view that if CPOs are to gain credibility among the general public, victims of crime and, most important, offenders, there must be immediacy, with the order enforced on the day of sentence or as soon as possible thereafter. Justice delayed is justice denied—and justice that is ineffective.
The issue of short custodial sentences is of course highly controversial, but let me state, in a typically consensual vein, that, as the cabinet secretary said, the committee unanimously accepted that short-term prison sentences do not normally achieve much by way of rehabilitation. The majority view—albeit on the basis of my casting vote—was that the Government's proposals in that regard were totally unacceptable. I might have more to say about that later, but I am constrained by the role in which I am speaking. Significantly, the weight of evidence among academics was in favour of the Government's proposals, whereas members of the judiciary, who actually work in the courts, tended to take the opposite view. The issue has somewhat further to run.
In relation to the difficulty with the operation of the Custodial Sentences and Weapons (Scotland) Act 2007 regarding monitoring after early release, the proposals in the bill come under the heading of good intentions, although there will clearly be practical difficulties and resource implications. We reckon that the Government has probably got it about right.
Finally on part 1, one would have thought that the view that drink is not a mitigating factor when it comes to sentencing was unanimous. Most members of the committee found it curious that the Government felt a need to codify that principle in statute.
Having dealt with the issues that are probably the most contentious, I turn to the proposals regarding serious and organised crime, on which the committee strongly supports the Government's underlying intentions. Let no one doubt that the police, prosecutors and politicians are determined to do everything possible to hit the drug barons and their criminal associates hard. The bill is extremely well intentioned, but the committee was not certain that some of the detail was right.
There are difficulties, with which the cabinet secretary has dealt to some extent, around the definition of "involvement" and "directing", on which further dialogue is necessary. We are also concerned about other definitions, such as what is meant by "serious and organised crime". We have asked the Scottish Government to re-examine the extent to which it would be possible to tighten the definitions. The committee is keen to play its part in attempting to find a proper way forward.
Another issue of non-political, general concern relates to the age of criminal responsibility. We accept that Scotland is not in line with other jurisdictions, but, at the same time, there has to be some protection against the activities of the very small minority of youngsters who can do pretty serious things. Section 38 was the subject of long and anxious consideration. We have been unable to form a settled view on whether 12 is the appropriate age threshold for someone to be deemed capable of committing a crime or to be liable to prosecution. Before we proceed, we need to get some assurances from the cabinet secretary that there is a sufficient range of disposals in the children's hearings system for children under the age of 12. The committee would welcome further dialogue on that matter.
The retention of samples is a controversial issue. The committee agrees that it is sensible to enable fingerprint and other forensic data to be subject to the same European convention on human rights-compatible retention regime as DNA. However, we are less certain whether it is appropriate to extend those provisions to those who are offered alternatives to prosecution. Appropriate thought does not appear to have been given to the proportionality of such a measure, bearing in mind the minor offences that are likely to be involved. That requires further examination.
The retention of DNA and other evidence, particularly from children and persons who have not been convicted of significant crimes, raises issues under article 8 of the ECHR. Once the Government has had time to absorb the committee's report, we would expect it to report to us to advise us what progress has been made with the forensic data working group, particularly on whether a draft list of offences is required. I have taken some encouragement from what the cabinet secretary said earlier.
Part 4 relates to evidence. The issue of witness statements and, in particular, the provision that will enable a civilian witness to look at their statement shortly before giving evidence troubled a number of committee members and we could not formulate a consensus on it. The legal profession and the judiciary shared our doubt, so we ask the Government to look at the issue again.
On the requirement for the spouse or civil partner of an accused to give evidence, although the Government's measures are undoubtedly well intentioned, we draw to its attention the evidence that the committee took and ask it to consider whether, in retrospect, what it proposes is the most satisfactory way forward.
There are a number of other sensible measures, such as the proposal to increase the age of jurors to 70. However, the provisions on disclosure in part 6 caused considerable anxiety. The rationale was fully understood, but there were concerns about defence statements being made available to the Crown. The committee was not persuaded that there is merit in the proposal to make defence statements compulsory in solemn cases, as that could prejudice important principles of justice, so perhaps the Government will give its justification further thought. There was a view that the disclosure provisions should be kept as simple as possible, as was highlighted in the excellent report by Lord Coulsfield, who provided valuable evidence.
The bill also deals with licensing, on which there are important provisions. It is unfortunate that the length of the criminal justice aspects of the bill preclude an exhaustive examination today of its licensing aspects, although that can take place in due course. Most of the licensing measures are common sense. However, I draw to the Parliament's attention the committee's concerns under a number of headings, such as the provision of antisocial behaviour reports to licensing boards and the committee's view that a sledgehammer was being used to crack a nut in respect of the charging of, or potential costs to, non-commercial groups for obtaining licences for charitable events.
Some events that councils require to license will require the council to expend a considerable amount of money in ensuring that everything is in order. The most obvious example is that of a rock concert, which would involve building control, environmental health and other council services. However, small events such as sales of work or flower shows—such events are familiar to many members of the Parliament—do not require the same level of council input. Perhaps the Government could look again at the matter, because, undoubtedly, there is a possibility that the good intentions of very well-intentioned people who work for charities could be frustrated if the costs that are involved become prohibitive. We cannot have charities suffer because of overtight regulation.
Other aspects of licensing are worthy of consideration, such as the definition of "fit and proper person". We are not totally relaxed that the law as it is at present is exactly the way forward, so perhaps some work could be carried out in that respect.
It would be wrong to suggest other than that the criminal justice provisions dominate the bill. Some aspects are good; some are, to my mind, capable of being improved, but the legislative thought process around them is entirely satisfactory and they would receive the approval of the majority of the Parliament; and others, such as the provisions on short periods of imprisonment, are bitterly controversial. In a conciliatory manner, I ask the cabinet secretary to look again at that issue. It may well be that Victim Support Scotland and other bodies took a differing view from half of the committee, but the committee has got it right and is speaking on behalf of the majority of the people of Scotland. As I said, I will have more to say on that later.
I hope that the Parliament will accept that a great deal of time and effort has gone into the preparation of the report, which will provide an informed basis on which the debate that will take place over the next few months can proceed.
I congratulate the Justice Committee on its stage 1 report on the bill and I congratulate the convener on his self-restraint in presenting it. Given the breadth of the bill, the committee has had a lot of ground to cover. The Scottish National Party's supposed flagship bill on law and order involves many exercises in consolidation and proposals that are technical in nature. Like others, I will not have time this morning to cover all the issues in the bill.
However, the proposal to legislate for a presumption against custodial sentences of six months or less is significant, because it is unworkable, unfunded and unjust. I am fulsome in my praise for the committee's report, because it was right to reject that proposal. It has often been said that the intention is that minor offenders should not be placed in custody—indeed, the cabinet secretary referred to that this morning. However, it is clear that that presumption will not apply simply to minor offenders but to all sentences of under six months, which would include 40 per cent of those convicted of indecent assault, 85 per cent of those convicted of assault and two thirds of those convicted of knife crime. That sends out entirely the wrong message on this key area of crime. It will not do anything to make our communities safer, which should be the focus of the bill—I am afraid that it is not.
There is a false debate about whether the measure in itself will reduce reoffending. We, too, want to reduce reoffending and we believe that community sentences have an important role to play in that, but reoffending rates are higher for those who are sentenced to prison because—alas—by the time that somebody receives a prison sentence, they have normally already received several other disposals. Almost by definition, a person who is given a prison sentence is a repeat offender. Putting offenders who would otherwise be in custody back in the community will not make communities safer. We should be clear about the consequences that that might have. Scottish Women's Aid has said that the presumption could
"have a negative impact on women, children and young people experiencing domestic abuse."
The cabinet secretary's argument that offenders will be sentenced to robust community payback programmes is fantasy. It is on his watch and not ours that community sentences are—sadly—losing public confidence. He referred to a survey in which 84 per cent of respondents said that they wanted community sentences as alternatives, but the same surveys show that people are losing confidence in such disposals.
Is Richard Baker in favour of the short custodial sentences that are normally imposed on women who fail to pay a fine that is incurred for soliciting? Would he continue such measures?
I certainly take on board Margo MacDonald's point. The Equal Opportunities Committee has reported on a range of issues in relation to women offenders and we will certainly consider that committee's proposals carefully.
I am afraid that the current state of community sentences cannot be ignored. One third are breached and a fraction start on time. Even those who agree with the cabinet secretary's proposal on six-month sentences say that it must be properly funded, yet in the next three years a black hole of some £66 million to provide the additional community sentences would result from the proposal.
We believe in the staff who deliver community sentences—they do a fantastic job—but the cabinet secretary is not resourcing them adequately. He says that he is increasing the available funding, but we know that the community justice budget is at best flatlining—as James Kelly said—and that the cabinet secretary has used unidentified underspend to say that he is supporting the funding in the financial memorandum. His calculations do not add up. That is a recipe for disaster that will push an overstretched community sentencing system to the point of collapse. All those who will be responsible for delivering the greatly increased number of sentences expressed concern to committees about funding. To be frank, the cabinet secretary has done no more than dismiss their concerns.
I will leave aside the resource argument, which we all accept is important. Does Richard Baker accept in principle that a move away from short-term sentences, which do not work and cost huge amounts of money, is desirable? I do not see what option he is presenting.
We oppose the presumption against short-term sentences in principle. We want more community sentences, but the resourcing issue cannot be escaped from—to be fair, Robert Brown does not try to do that. When the financial memorandum is scrutinised—Mr Purvis was good at doing that in committee, along with Labour members—the inescapable point is that the funding simply is not there. Everybody has said that, if the Government believes in the proposal, the investment should come first, but the investment has not been identified, even though the Scottish Government's budget is increasing—of course, the cabinet secretary failed to refer to that.
We believe in robust and effective community sentences. That is why we pioneered drug treatment and testing orders, why we now propose the use of alcohol treatment and testing orders and why we first proposed the community court in Glasgow. In England and the USA, that model provides swift and effective community justice in which we can have confidence. Despite everything that the Government and the cabinet secretary have said about community sentences, the Scottish Government prevented the pilot community court from proceeding, although the Parliament voted for the pilot. Nothing else demonstrates so well the muddled thinking behind the bill and behind the presumption against short-term sentences.
If we are to look towards more and better community sentences, investment must come first. The cabinet secretary says that we cannot continue to spend money on prisons, but his officials told the Finance Committee that the proposals in the bill would not save a penny in the prison system. Front-loaded funding is needed, but the cabinet secretary is not providing that.
We will not support the failure to act effectively to tackle violent crime. We have proposed and will pursue a policy of mandatory minimum sentencing for knife crime. We still have some 3,500 charges of possession of an offensive weapon each year and higher violent crime rates than England has. That is why it is time to send out the clear message that if someone carries a knife, they will go to jail. Communities want tougher action to improve their safety, but the bill proposes that fewer people should go to jail for carrying a knife and that two thirds of the people who are convicted of such offences should not go to jail. The lack of action on knife crime in the bill is another unacceptable failure.
We support some measures in the bill. We do not oppose the sentencing council per se, but we have listened to the Lord President and others and believe that it should have a judicial majority, that a mechanism for it to report to the Justice Committee should exist and that it should have a narrower remit and reduced costs. The council should not have to take account of the prison population—it should have a clear and unadulterated focus on what is just in sentencing.
We will not oppose the change to the age of prosecution for children, but the Lord Advocate might need to retain the right to pursue a prosecution in exceptional serious circumstances. We will listen to views on that point and consider the detail of changes in the children's hearings system, which we still await.
We do not oppose the rebranding of community sentences, but rebranding is of course useless if the resources are not provided to make the sentences work and we are concerned about the detail of the proposed changes. For example, the Sheriffs Association's submission to the Justice Committee says that, under the proposals, no penalty would in effect be imposed for breaching supervised attendance orders. Normally, the penalty is additional hours, but as the bill sets an upper limit of 300 hours for orders, a subsequent breach would have no effect on those who have been sentenced to such an order. That requires to be addressed.
Scotland should not be left with weaker laws on DNA retention than the rest of the United Kingdom has. The report of a serious case only yesterday showed that DNA profiles can be an invaluable tool in detecting and preventing crime.
The proposals on tackling serious and organised crime are positive, but I understand from the financial memorandum that they will apply only to some two cases a year.
The reality is that—sadly—the positive proposals in the bill are far outweighed by the negative. Given the committee's rejection of the Government's proposed presumption against short custodial sentences, and to provide the opportunity for amendments to be lodged to make the bill effective in tackling violent crime, we will allow the bill to progress to stage 2. However, the reckless presumption against six-month custodial sentences and the Government's unwillingness to take action on knife crime are lines in the sand. If they are crossed in the final stages, we will not support the bill. Labour will always, always put the safety of our communities first.
The bill is complex and epic in the proportions of what it covers. The Justice Committee is to be congratulated on its efforts to scrutinise the bill. Many provisions are not contentious and will simply tidy existing procedures in the criminal justice system. We welcome most of those.
The journey to reach the stage 1 debate has been interesting. I am sure that we have all read the many consultation papers in anticipation of the Scottish Government's bill. I remember clearly the debate on the Scottish Prisons Commission's report in September last year, when we discussed in depth the recommendations to reduce the average prison population to 5,000 and to scrap sentences of six months or less in favour of community supervision sentences. As members have done today, I expressed then my concern about where that approach to custody would take us. Despite what the cabinet secretary said today, I am disappointed that the Scottish Government has not heeded those concerns and dropped the proposals from the bill.
Will the member take an intervention?
I want to make progress.
As I said, we welcome some proposals in the bill. For example, we welcome the moves to crack down on the use in prison of personal communication devices, such as mobile phones. I recently visited several prisons and I was struck by the problems that communication devices present to our Scottish Prison Service. Prisoners share the hand-held phone device but have their own SIM cards, which makes detection harder. The use of communication devices in prison enables prisoners to continue their criminal activities as before. My colleague Ted Brocklebank will consider that in detail later.
We warmly welcome the extension of the upper age limit for jurors. That will bring the law of Scotland into line with that of the rest of the United Kingdom and will create a bigger pool of jurors on which the Scottish Court Service can draw. I anticipate that David McLetchie, who has campaigned hard on the issue since 2005, will have something to say on the matter in his speech.
I will spend some time focusing on the sentencing provisions in part 1, particularly the creation of community payback orders, and the presumption against short periods of imprisonment or detention. We welcome the creation of CPOs, which will help to simplify the current range of community sentences, but the Government must ensure that CPOs are not only adequately resourced, as the Justice Committee pointed out, but properly enforced.
Last year, 35 per cent of community service orders were not completed successfully and 35 per cent resulted in a breach application. With statistics like that it is not unsurprising that the public do not have much faith in community sentences, let alone the criminal justice system. The Scottish Conservatives are not anti community sentencing. Believe it or not, we do not want to see more people locked up in prison. We want to stop offending and, more particularly, reoffending. We believe that community sentences can play an important part in our sentencing regime. However, if they are to work, they must be rigorously enforced and complied with.
We have called for the creation of a community court in Glasgow. Such a court would ensure that justice was served and was seen to be done, and it would give offenders every opportunity to make positive choices, change their lives for the better and get out of the vicious cycle of persistent offending. It is therefore disappointing that the Scottish National Party Administration has rejected the setting up of a community court in Glasgow.
It should be remembered that imprisonment serves four functions in our society: to protect the public, to deter, to punish, and to rehabilitate. I accept that a sentence of six months or less may not give an offender access to the full range of rehabilitation facilities that someone who is imprisoned for a longer period can access. However, as important as rehabilitation is—and I believe that all people need to be given an opportunity to make positive changes in their lives—it is not the only purpose of imprisonment. Prison is also to deter people from reoffending; to show them that their behaviour is unacceptable to society and that the consequence of their actions is for them to lose their liberty for a set time as a punishment; and to protect our public and give them respite from a persistent offender or someone who is deemed to be a risk.
If one visits Polmont young offenders institution, one finds that 91 per cent of the young offenders have been there before. That does not say much for the deterrence argument. What is the member's comment on that?
We need to understand why they are repeat offenders and why we are not using their time in prison to rehabilitate them more effectively. The argument that short-term sentences are not working is not a reason for abolishing them completely. Those sentences should be more effective as a deterrent.
Short-term sentences offer sheriffs and judges the option of dealing with persistent offenders who continuously breach community service orders by giving them a short, sharp shock to ensure that they do not reoffend. They also provide respite to communities that are blighted by the actions of the accused. Short-term custodial sentences will always be a necessary part of any summary justice system. Judges and sheriffs do not send people to jail lightly.
It is respite care, now.
Respite care!
I hear members querying my reference to respite. A number of my constituents rely on short-term sentences to provide them with respite from the blight that individuals cause to their communities. Members should not underestimate the effect that short-term sentences can have on our constituents across Scotland.
The licensing parts of the bill also require further consideration, particularly their impact on charitable organisations and community groups. The Justice Committee convener mentioned that point. Recently, like other members, I received an e-mail from the Church of Scotland Guild voicing its concerns about the effect that the bill would have on its events and activities. Many local groups run small fairs, coffee mornings and other events at which they invite local businesses to display goods. They also run rallies and ask local bookshops to provide a bookstall during the event. Although the group does not make a profit on many of these occasions, the new licensing measures will require the procurement of a licence. Local authorities will have discretion over charging, but there are concerns that groups in different parts of the country may be treated differently—which could lead to inequality and unfairness—and that having to get a licence may mean that they will not put on such events in the future. That would be unfortunate for not only the groups, but the local, mostly independent shops, which may suffer a negative impact.
In addition, the Scottish Sports Association voiced concerns about the impact that the bill would have on its ability to promote sport throughout Scotland. The SSA noted that the bill would make it unviable for sport clubs that work on a not-for-profit basis to continue to promote their activities or raise funds. Many of the funds that clubs receive from the sale of goods to the public are accrued in relatively small amounts. If they are required to obtain a market operators licence for such fundraising activities, it is clear that the situation may become unviable. We should encourage and not punish clubs that are being proactive in the pursuit of additional funds. The SSA also believes that the measure will act as a deterrent to volunteering. Without the work of many thousands of volunteers, many sports clubs would not survive. Those sports clubs provide coaching, competition and youth development opportunities to local communities. We should help to facilitate such community involvement.
In September, the Scottish Government published "On your marks... Get set... Go: A games legacy for Scotland", in which it stated its ambitions for Scottish sport in the preparation for and years beyond the 2014 Commonwealth games in Glasgow. It speaks of a partnership between the Government and groups such as the SSA in delivering those sporting objectives in the community. How can the Government truly support such statements if it then places additional controls and financial burdens on clubs that are working to promote sport throughout Scotland?
We must recognise the effect that the bill could have on charities and community groups in the hope that we will not hinder their ability to continue to do good work in their local communities.
The Scottish Conservatives will vote for the Criminal Justice and Licensing (Scotland) Bill tonight at decision time, but we look forward to seeing the amendments at stage 2 that I am sure will be lodged and which we hope to support.
I commend Bill Aitken, the Justice Committee convener, for his comments on behalf of the committee. I do not always agree with him, but on this occasion I agreed with pretty much every word that he said.
The Criminal Justice and Licensing (Scotland) Bill is long and complex, with many separate and largely unconnected strands. As we have heard, some of its proposals are highly contentious. It is a tribute to my colleagues on the Justice Committee that we were able to produce a report that was the subject of only one formal vote. I say that given the differences of emphasis or expertise in the committee membership. That consensus gives added power to the broad themes of the stage 1 report. I hope that the Government will listen and respond appropriately—indeed, the cabinet secretary indicated that he will do so.
I will indicate the Liberal Democrat position on some of the central issues. This stage 1 debate is taking place in a different financial climate from that which pertained when the Scottish Prisons Commission reported and the bill was conceived. That must influence our approach. We must ask whether particular proposals are essential or just useful.
I say immediately that the Liberal Democrats are clear in principle that those most important sections that aim to reduce short-term prison sentences and replace them with tough, speedy and effective community sentences are absolutely vital and must be properly resourced. Frankly, aiming to reduce such short-term sentences is a no-brainer. The public is funding prison places at up to about £40,000 a year per prisoner. Some prisons are housing minor criminals in grossly overcrowded conditions from which they routinely leave worse than when they went in, the underlying causes of their offending not having been addressed and the family or employment supports that are key to their rehabilitation having been fractured.
The public are equally entitled to know that the punishment that is meted out by the state is the most effective possible in stopping their local community being troubled by violent disorder, vandalism, the consequences of alcohol or drug addiction, and repeated crimes of dishonesty—all of which cause huge annoyance, worry and fear to law-abiding citizens. The Government must adequately fund community payback orders if the public are to have confidence in such measures. In fairness to the cabinet secretary, he has responded specifically to Liberal Democrat concerns on the issue by providing an initial sum of £2 million and a further £5.5 million over two years to bring existing community sentences up to scratch. Despite what members have said in the debate, I know from my visits to community justice authorities that the money is having an effect: sentences are being speeded up and sharpened up.
However, we all know that the quality of different projects is patchy and that, in moving to the new form of community orders, it is a fundamental challenge to ensure that they are started immediately, managed and supervised with both skill and authority, and allowed not just to produce visible payback to the local community, which is hugely important, but to turn around the offender. As the Justice Committee said, the presumption against short-term sentences will lead to basic costs increasing by 10 or 20 per cent, according to the Government's estimates—about which there are issues. There will also be additional costs for the Scottish Court Service and for the voluntary sector bodies that will be involved in delivering the new CPOs. The conditional requirements that will often accompany the orders may require drug or alcohol addiction treatment, mental health treatment or literacy support, all of which cost money.
Does Robert Brown accept the evidence of Government officials to the Finance Committee that releasing prisoners on short-term sentences will not save any money from prison budgets?
I do. There will be longer-term savings, if we get CPOs right, but achieving short to medium-term savings will be a challenge. That is why bridging finance is an important issue in this area, as in so many others. Community justice authorities gave evidence that the unit cost figures that were used to calculate the costs of community orders may not be adequate. Liberal Democrats are clear that current resource levels will be inadequate and that the Government will need to find additional resources if the new CPOs and, more particularly, the presumption against short-term prison sentences are to be more than tokenistic and are to make the substantial difference to crime levels that we believe they are capable of making.
Liberal Democrats offer a partial way forward—to apply the presumption only to sentences of under three months, at least in the first instance, which would reduce the organisational and financial pressure. However, there is a difference in a broad sense between the pattern of crimes attracting sentences of less than three months, which looks more like that of those attracting community sentences at present, and the pattern of crimes attracting sentences of three to six months, which tend to look more like more serious crimes. As other members have said, why, for goodness' sake, does the SNP not rethink its lamentable and short-sighted decision to abandon the Glasgow community court project—one of a growing number of projects that have not been properly assessed but have been binned by ministers who are too often hung up on administering the smack of firm but, in this instance, inadequate Government decision making?
I will say a word about the opposition on this general issue from Labour and the Tories. With respect, I say to Richard Baker that resource is a smokescreen for Labour—as he indicated in his response to my intervention, they are against the changes in principle. They operate on the principle that no press release should go out and no new policy should be announced that does not say that they want tough penalties or tough action, which implies that the only respectable sentence for any crime is to lock up the culprit and throw away the key. That used to be the preserve of Tory conferences, which rapturously received demands for the restoration of the death penalty or bringing back the birch. Since 1997, however, new Labour has positioned itself in such a way that no one can outdo it on being tough on crime. I say to Richard Baker and the Labour Party that the difference is that they know that short-term sentences do not work but are desperate to give the impression of ceaseless activity in fighting crime, to ensure favourable headlines in the tabloids—not least those owned by Rupert Murdoch, new Labour's erstwhile but, it turns out, fair-weather friend. Richard Baker knows that demands for tough action on crime are a political spin-doctor's invention and substantially irrelevant to the real issues that we face in fighting crime.
Mr Brown's accusation that we are seeking support from Rupert Murdoch is behind the times and gives the lie to the outrageous politicking of his statement, which is entirely wrong. Does he accept not only that we pioneered community sentences when we were in government with the Liberal Democrats but that we have looked for further alternatives to custody during this session, including alcohol treatment and testing orders, which we have pressed for in the context of the bill? The member's statement was extremely unfair and misrepresented our position.
I pay tribute to Richard Baker for some of the policies that he mentions, but I am making a general point about positioning, right down from the Labour Government in London to Labour members in the chamber.
It is no coincidence that about 80 per cent of the young children of five or six who come before the children's panel as being in need of care and protection are back before the panel or the court at the age of 16, 17, or 18 for offending. One third of those entering prison are assessed as having an alcohol problem on admission, and 50 per cent as having a drug problem. If they do not have a drug problem when they go in, they are pretty likely to have one when they come out. Sadly, no less than 70 per cent have some form of mental health problem, with huge proportions having literacy or numeracy challenges. I mentioned the Polmont young offenders institution to John Lamont. I do not know what sort of percentage he requires to be persuaded on these matters, but 91 per cent seems pretty high to me.
I want to take a sideways glance at the issue of women in prison. Staff at Cornton Vale tell me that their main job is to try to rebuild shattered and fragile lives, to make up for the devastating fact that women are taken away from their children and homes and that their self-respect is at rock bottom, their mental health fragile and the likelihood of a suicide bid high. To all intents and purposes, those women are there mostly for their protection rather than for that of the public. It is not obvious that we are too soft on their crimes—in fact, it is totally clear that society has failed those women, that life has been extraordinarily tough for them and that there is a high chance that their children will be among the next generation of offenders.
Will the member give way?
I cannot at this point—I am heading towards the end of my speech.
In my view, the £1 million annual running costs of the proposed Scottish sentencing council are not justified in the present climate. It could be a useful body; however, if the cabinet secretary goes ahead with the proposal, he should for goodness' sake pay heed to the judiciary's justified concerns and square the circle by having the council's proposals, influential as they will be, endorsed or amended by the appeal court, to ensure that there is separation of powers.
I conclude with a brief word about children. We need to sort out the age of criminal responsibility, in line with the report of the United Nations Committee on the Rights of the Child. We must also look at DNA issues, in the way that the Justice Committee recommended. The children's hearings system was not set up to deal with legal issues of that kind, and it is almost impossible to define the cut-off point between serious and not serious crimes. The number of cases would be modest, and many would go to the sheriff anyway for a finding on the referral. Such cases should be referred or should go to the sheriff.
This is an important bill, but a great deal of work remains to be done to get it right. We expect to see our concerns addressed as the bill proceeds. For many people, failure creates despondency, aggression and more failure. The high challenge for the bill is to help to break the cycle of failure, to support the work of the violence reduction unit, early intervention and diversion from crime, and to build a system in which reoffending rates are not 91 per cent in Polmont or 75 per cent in prisons generally and the current 42 per cent for community sentences is bettered by as much as possible. That is the prize. If we succeed, our country and society will be much the better for it. Alas, we cannot say that for the position advanced by Labour and the Tories in the teeth of the majority of evidence that witnesses gave to the Justice Committee. They have generations of abysmal failure of so-called tough policies on crime to explain away. Liberal Democrats members will support the bill at stage 1 tonight.
I add my thanks to the many witnesses who provided evidence and to the committee clerking team for all its hard work.
I start with two proposals in the bill that have received particular attention. The first is the presumption against short custodial sentences—the one issue on which the committee could not agree a position. Four members voted in favour and four against. The vote displays why that proposal will feature heavily at stage 2 and, no doubt, at stage 3.
In my view, the arguments in favour of the proposal are overwhelming, whereas the arguments against do not stack up. Beyond a shadow of a doubt, the current policy has failed. It has been tried for years and has had little or no impact on turning people away from a life of crime. In fact, many people argue—in my view, cogently—that the exact opposite is the case and that short custodial sentences are a door into, rather than out of, a life of crime.
Despite some people's attempts to cloud the issue, the bill proposes not the abolition of short custodial sentences but a presumption against them, with the judiciary retaining the freedom to impose such sentences where they are necessary and appropriate. Inevitably, it will be for the chamber to take a view on the matter at stage 3, as the 50:50 split in the committee reflects the diverse views that are held across the chamber.
I turn to the proposal for a sentencing council. I believe that we need a body to provide the courts with guidelines on sentencing and that the current arrangement is no longer the best way of dealing with the matter. As Robert Brown mentioned, there was a difference of opinion in the committee on judicial independence in the context of a sentencing council. I do not believe that we would be going far enough if we set up a sentencing council whose recommendations must then be approved by the court. That would not move us on particularly far. If there have to be changes to the bill, we should look at the make-up of the council and discuss whether there is a case for it to have a judicial majority.
On the £1 million funding for the sentencing council, does the member agree that, in these difficult economic times, some of that money would be better used to fund community payback orders?
James Kelly lays a false choice before the chamber. Of course it is important that we achieve value for money from our investment in this area—the committee made that point in its report—but it is not a straight choice between the two options as he suggests.
A judicial majority on the sentencing council might strike the right balance between maintaining judicial independence and providing us with a body that will introduce robust guidelines on sentencing.
I turn now to DNA retention and the committee's conclusions at paragraph 372 of the report. A trend in recent years has been the increasing use of non-court disposals or direct measures such as fiscal fines. However, one of the unintended consequences of that trend has been that if two people commit an identical offence, receive an identical charge and both have their fingerprints and DNA taken, they can end up with two different outcomes. The person who chooses to go to court and is found guilty of the offence has their DNA and fingerprints retained, but the person who accepts the offer of a direct measure does not have their DNA and fingerprints retained. There is no justification for the difference and, as I have indicated to the cabinet secretary and the committee, I intend to lodge an amendment to close what I believe is an anomaly in the current rules.
One of the other issues that caused debate in the committee was the age of prosecution versus the age of criminal responsibility, as other members mentioned. The bill seeks to raise the age of prosecution to 12 from the current age of eight, while retaining the age of criminal responsibility at eight. That means that children between the ages of eight and 12 could no longer be prosecuted through the criminal courts. Although the change is long overdue, I do not support the proposals from some outside the chamber to raise the age of prosecution to 13, 14, 15 or even 16, neither do I support the idea that we should change the age of criminal responsibility. There are cases of children below the age of 12 who are clearly capable of understanding the difference between right and wrong and who have committed crimes for which they must take responsibility. Therefore, I am content to support the position that is outlined in the bill.
I will mention briefly two other matters in the report. The first is serious organised crime. I realise that some people are concerned about some aspects of that area of the bill, in particular section 28, on failure to report serious organised crime. We must take a robust line on the matter as any gaps that we leave will be exploited by the very people with whom we are trying to deal. That is what happens at the moment. I recommend that members read the evidence on the matter that was provided to the committee by the Lord Advocate and the Solicitor General.
My final point relates to the proposal to allow non-invasive post mortems, to which paragraphs 645 to 651 refer. Although it is not a part of the current bill, I raised the matter with the cabinet secretary and the committee and asked questions of the Lord Advocate when she gave oral evidence. We also received written evidence about it from the Scottish Council of Jewish Communities. Therefore I ask that, if possible, we get a definitive response in the summing-up today to the questions raised about the possible use of non-invasive post mortems in Scotland and, in particular, to the question whether a change in legislation is required.
I ask all members to support the bill at decision time.
Before I call Bill Butler, I remind members that speeches should last five minutes rather than five and a half minutes.
As deputy convener of the Justice Committee, I place on record my sincere thanks to the committee's clerking teams past and present, the Scottish Parliament information centre and the many witnesses who gave invaluable evidence to the committee.
There is no insurmountable difference between Labour and the Government on several measures in the bill that merit support, such as those on serious organised crime, voluntary intoxication by alcohol, people trafficking and the upper age limit for jurors. However, given the voluminous nature of the bill, I will confine my comments to some of the more controversial aspects of part 1 where no agreement has been found.
One of the most worrying aspects of this putative act is the Government's proposal to introduce a presumption against six-month sentences other than in exceptional circumstances. The production of a coherent penal policy that leads to a safer and stronger Scotland is the aim of all members across the chamber; it is certainly central to the creation of a rational system of criminal justice.
A sensible and resilient penal policy must be capable of delivering several objectives: an improvement in public safety; the delivery of condign punishment when necessary; the protection of victims' and communities' interests; and a contribution to reducing reoffending and promoting rehabilitation. Those are desirable outcomes, but determining how we achieve all or any of them is where this serious debate must focus. I say to Robert Brown that these are complex and difficult areas of policy to which no easy answers or soundbite solutions exist. One of the most difficult questions is not only how we strike a rational balance between custodial and community sentences but how we develop consensus on the symmetry between punishment and rehabilitation that is acceptable to people in our communities and recognised by them as being workable.
I remain profoundly dissuaded of the Government's policy to end six-month or shorter sentences other than in exceptional circumstances. Such a legislative change would send out entirely the wrong message to the public.
Will the member give way?
No, thank you.
Pace the cabinet secretary, sentences of less than six months are not imposed on fine defaulters alone but cover, for example, those who push class A drugs in our most vulnerable neighbourhoods, some of which I represent. Such sentences cover housebreakers who leave behind a trail of damage and heartache and common fraudsters who prey on the old and weak in our communities. Such sentences also cover thugs who employ physical violence that can leave innocent passers-by hospitalised and, in some cases, permanently disfigured. Such a policy would be a serious misjudgement. Although it would not forbid sheriffs from imposing such sentences, it would unnecessarily restrict the scope within which the judiciary may act in cases where the safety of the public—our constituents—is paramount. I sincerely hope that the Government will think again before stage 3 about this controversial and ill-judged provision.
The other side of the equation is community disposals. If such disposals are to gain the confidence of the Scottish public, they must be visible, have immediacy and be resourced properly. I remain troubled as to whether community payback orders will be funded adequately. I have no problem with the principle of CPOs because, as my colleague Richard Baker said, they are a rebranding of the alternatives to custody that were introduced by the previous Labour-led Executive in coalition with the Liberal Democrats. Mine is a genuine worry about the £66 million black hole that is echoed by the Finance Committee, which notes that it has not
"received any evidence to allow it to understand whether the estimated update of CPOs, of between 10 and 20 per cent, is accurate or whether this figure is likely to increase year-on-year, along with the cost implications."
I hope that the Government can provide comfort on that concern before stage 3 because it is not a cover; it is a serious concern and worry that we have on the Labour side of the chamber.
Labour will support the bill at stage 1 but, unless the Government thinks again about the matters that I mentioned, among others, we on these benches will not vote for the bill at stage 3. I hope that the Government has the wisdom to retreat and preserve the parts of the bill that are worth preserving.
The Criminal Justice and Licensing (Scotland) Bill gives the Parliament an opportunity to take Scotland closer to being the safer, fairer country that we all want to live in. I welcome the wide-ranging consultation by the Scottish Government on the various aspects of the bill and the thorough scrutiny that was carried out by the Justice Committee. I made submissions to both the Government and the committee on aspects related to the legislation and will return to that shortly.
I endorse the general principles of the bill, as well as the wide range of specific measures that will help to tackle so much of the crime and its consequences that blight too many of our communities.
I am particularly interested in how the bill will affect the youngest members of our society. The Government is right to use the bill to reinforce the importance of ensuring that younger children who offend will continue to be dealt with in the hearings system and will be held, when that is necessary, in secure accommodation and not in adult courts or prisons. The approach is important, because it protects the rights of young people and meets their needs appropriately. It also has the effect of minimising contact with adult criminals and thereby reducing the risk of reoffending.
However, it is not just young offenders who are affected by the justice system. The children of adults who commit offences are also affected by sentencing decisions. Scotland's Commissioner for Children and Young People published the report "Not Seen. Not Heard. Not Guilty: the Rights and Status of the Children of Prisoners in Scotland" in February 2008, and in June that year the Education, Lifelong Learning and Culture Committee discussed issues that were raised in the report with the then commissioner, Kathleen Marshall. In the report, the children of offenders were described as
"the innocent victims of their parent's offending".
That sums up the situation in which so many of those children find themselves.
In 2002, a report by the Scottish Prison Service, "Making a Difference", revealed that about 13,500 children in Scotland had a parent in prison. Families Outside, a Scottish charity that works with families who are affected by imprisonment, points out that, given the rise in the prison population since 2002, the current number is likely to be significantly higher. Kathleen Marshall said:
"At least as many children are affected by the imprisonment of a parent as are looked-after children in Scotland".—[Official Report, Education, Lifelong Learning and Culture Committee, 25 June 2008; c 1257.]
Each case gives rise to costs of alternative care arrangements, problems for the parent when they try to get their children back after serving a custodial sentence and wider societal costs of depriving a child of a parent. Children who have a parent or primary carer in prison often exhibit regressive behaviour, such as bed wetting, or display emotional and behavioural problems. Families Outside noted that even having a parent who is remanded in custody can have a disproportionate and negative impact on a child.
The SCCYP has highlighted a ruling by the Constitutional Court in South Africa, which introduced child impact assessments, to be carried out by lower courts at the point of sentencing. Earlier this year, I was privileged to hear more about the system when I attended a moving lecture by one of the members of the court, Justice Albie Sachs. I congratulate Tam Baillie, the current children's commissioner, on organising the lecture, which made a powerful impression on everyone who attended. Justice Sachs quoted from the judgment that he had given in the case of S v M, in which a woman who would otherwise have been jailed was kept out of jail because of consideration of the rights of her three sons. He said:
"Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinct personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them … the sins and traumas of fathers and mothers should not be visited on their children."
The Cabinet Secretary for Justice is familiar with the issue, because he kindly met me and other interested parties to discuss it. Other members will be aware of the issue, thanks to the helpful briefings that Action for Children and others provided in advance of the debate.
I make it clear that I am not advocating that convicted criminals who are also primary care givers should not be properly punished. Any person who poses a threat to the public should be incarcerated, whether or not they have children. Nor am I suggesting that it is always in a child's best interests not to lock up their parent or carer. In my submission to the Justice Committee, I argued that imprisoning low-level offenders who have children has a wider social impact as families are broken up. If we punish such offenders in the community, justice will be served and Scottish society will not have to deal with the long-term social consequences of family breakdown. I hope that the approach will also break the cycle whereby the children of prisoners are more likely to offend.
The presumption against short-term sentences will help to achieve that outcome to some extent, but there might also be a role for the Scottish sentencing council, which the bill will establish. In my submission to the Government's consultation on the sentencing council, I suggested that, when the council is established, it might review the effectiveness of social inquiry reports, which can be carried out as part of the sentencing process, and consider whether a specific family impact assessment should be carried out whenever an offender has caring responsibilities for children or other dependants. I hope that the cabinet secretary and the Government will consider my suggestion as the bill continues through the parliamentary process.
I hope that there will be support for the bill in the Parliament and I look forward to supporting it at decision time.
Like other members, I pay tribute to the people who assisted the Justice Committee in preparing its report—I am a member of the committee, so I will take the credit that is going.
It is important that I say at the outset that although I agree with aspects of the bill, a number of areas cause me great concern. I have time to highlight only a few areas. To enshrine in law a presumption against short sentences is wrong and would send the wrong message. In the view of many of my constituents and many other people throughout Scotland, the Cabinet Secretary for Justice is not taking his position seriously. In the words of someone to whom I spoke at the weekend, he is "having a laugh" at the expense of communities throughout the country.
This is a serious matter and, if the Government will not take it seriously, the Parliament must do so. If the cabinet secretary thinks that scrapping sentences of six months or less will send the message that the SNP minority Government wants to tackle criminality and protect the public, and if the Government believes, as it seems to do, that people who are convicted of serious crimes should avoid a prison sentence, the Government is way out of touch with the Scottish public. The cabinet secretary quoted all sorts of organisations and academics in his speech, but I can quote the Mrs Smiths who live round the corner, who think that if someone has committed a serious crime, a custodial sentence is necessary.
Short custodial sentences work—there are examples of that in my constituency. If the cabinet secretary really believes that prison is a skoosh, he should bring to the Parliament measures to address the issue, rather than a stunt that will reduce prisoner numbers by leaving dangerous criminals on our streets.
Will the member give way?
No, I am sorry. I do not have time.
The sentence should fit the crime. If a judge or sheriff considers that a prison sentence of six months or less is appropriate, the sentence should take place and the judge's time and court time should not be further taken up by report writing to explain the decision.
The Liberal Democrats should come off the fence. If they do not think that short sentences work, why are they prepared to compromise with the Government and talk about minimum sentences of three months? They should get their act together, stop judging other members and make a decision.
Will the member give way?
I am sorry, but I do not have time.
On the Scottish sentencing council, I am not convinced that the bill will change anything. There is a perception of inconsistency in sentencing. The committee was disappointed that it could gather no hard evidence on the issue, but what did come to light was the difficulty of gathering measurable evidence. Dr Cyrus Tata, from the centre for sentencing research at the University of Strathclyde, cautioned us against drawing direct inferences from bald statistics that do not take account of possible differences in the cases that come before different courts. He cited a range of studies that provide evidence of inconsistency as well as consistency and said:
"The overall picture is rather like a bell curve, with a lot of consistency and some variation."—[Official Report, Justice Committee, 2 June 2009; c 2012.]
The bill would require the sentencing council to include in its sentencing guidelines
"an assessment of the likely effect of the guidelines on … the number of persons detained in prisons or other institutions".
That is unbelievable. Are we saying that sentences and punishment in Glasgow, for example, should be decided not on the basis of whether they fit the crime but on the basis of whether Barlinnie prison happens to have a space? I do not have time to say more, but I ask the cabinet secretary to listen to the warning bells that Dr Tata sounded in that regard.
On licensing, the proposals in section 125 would have serious financial and administrative consequences for charitable and voluntary organisations. The policy memorandum to the bill is silent on the matter. There is not a word on why the Government thinks that change is necessary, and questioning of the cabinet secretary brought the committee no information on why section 125 is necessary. If section 125 is not amended, it will have a disastrous effect on the ability of charities and community groups to engage with and serve the public through fundraising events such as gala days. The cabinet secretary is unwilling to take responsibility for the change that he promotes but passes the buck to local authorities, leaving a real chance of differences being created all over the country. It is not acceptable to leave that hanging in the balance. We must make changes to the section and I inform the Parliament that I intend to introduce amendments to protect the status quo.
As my colleague John Lamont already indicated, there is much in the bill to criticise. I will not waste the opportunity to do so later, but I will start on a more positive note by considering section 68, which deals with the upper age limit for jurors. I welcome the proposal to increase that limit from 65 to 70 years of age. It is a measure for which I have campaigned since July 2005 when the matter was first raised with me by my constituent Mrs Campbell, who wrote:
"Dear Mr McLetchie
I wonder if you might be interested in … progressing in the Scottish Parliament, a ‘niggle' that arrived in the post this morning! I received a notice for potential jury service"
in Edinburgh sheriff court
"but unfortunately as now aged 67, I am ‘too long in the tooth' … but as I am now retired, I have at last the time and interest and maybe even some experience of ‘life' to be able to serve if selected … why cannot jury service age be raised to at least 70?"
I took the matter up with Cathy Jamieson and then her successor, Mr MacAskill. Although it has taken more than four years, I am very pleased that the change will be enacted with, I hope, all-party support—even though, ironically, it will come too late to give Mrs Campbell an opportunity to serve. The age limit of 65 is long out of date and fails to represent the demography of Scottish society. Indeed, it is only one of many examples of age discrimination that still exist in our law.
Raising the age limit in Scotland to 70 will bring us into line with the rest of the United Kingdom and correct the long-standing and glaring anomaly in our justice system that judges can serve on the bench until they are 73 years of age, but a person who is over 65 cannot serve on a jury. Increasing the upper age limit for jurors will also increase the pool from which people are selected for jury duty by a further 200,000. That is important at a time when the court service finds it increasingly difficult to maintain a sufficient juror pool to fill our 15-member juries in Scotland.
I point out that it would be possible to have no upper age limit at all—as is the case in many jurisdictions—and move to a system in which anyone over 65 could serve but could choose not to do so. That is the system that is advocated by Help the Aged and Age Concern. Perhaps we may have an opportunity to debate the issue at stages 2 and 3.
Section 17 provides for the highly controversial presumption against short sentences. Like other members, I was sorry and angry to learn earlier this week that the number of incidents of domestic violence recorded by the police had risen by 8 per cent in the past year to 53,681. It is surely a particular concern that there was a 39 per cent increase in the number of incidents in which the victim had previously been abused. Last week, my colleague Bill Aitken discovered from a parliamentary answer that a mere 12 per cent of the 5,029 people who were convicted of domestic violence in 2007-08 received a custodial sentence, 19 per cent received a community sentence, 39 per cent were fined and 29 per cent were admonished. So much for zero tolerance; it is more like zero sentencing.
If there was ever an argument for short-term sentences, those figures surely provide it. A sentence of six months—or even three—can be long enough to give the victim of domestic violence a welcome respite and the opportunity to make a break from the past and create a new home and life for her and her family if that is her wish. Richard Baker was right to draw our attention to the comments of Scottish Women's Aid on the proposed presumption because this week's figures show that many women are trapped in a vicious cycle of abuse and are given no assistance by a criminal justice system that puts their abusers back in their homes.
Will the member give way?
I am sorry, but I must finish this point.
I am afraid that the SNP's proposed presumption against short sentences would make the situation worse not better. There are many instances in which a short spell in custody serves as a respite to a community, person and family. When judges and sheriffs sentence convicted criminals, they take into account the wider picture. They do not send offenders to prison just because they can do so; they send them to prison because it is just to do so. Justice is in the title of the bill, but I am far from convinced that it is in all the content.
If we are passionate about reducing crime and making communities safer, we need to cast a cool eye over the evidence and dispassionately decide what will work and what measures will bring about lasting change in our communities instead of resorting to populist, primitive, Old Testament views of justice. Justice requires proportionate punishment, but punishment alone does not work. By necessity, we need to focus on the control, change and care of offenders. The bill is an attempt to strike the correct balance.
In many regards, the tide has begun to turn, with more police, recorded crime being down by 11 per cent over the past two years, cashback for communities—or, as one of my constituents describes it, cashback from crooks—and the fact that we now have a serious organised crime task force. However, if we are to secure real and lasting changes, we need to make some bold decisions.
It is time to show some leadership and courage. Often, in such debates within and outwith the Parliament, there is much talk about who is tough and who is soft in the rather macho world of politics, but I put it to members that the soft ones are those who take the easy and lazy option: those who opt for political expedience and pander to the right-wing reactionaries as opposed to taking tough decisions and showing leadership in tackling real concerns.
One of the things that the McLeish commission demonstrated is that political factors often have more influence on high imprisonment rates than crime does. I would think that that would be a good, solid reason for a sentencing council. I would also think that a sentencing council would have a valid role in, and be a sensible vehicle for, introducing some good, robust guidelines on knife crime and domestic violence.
Women offenders have already been mentioned. Why is it that, since 1997, the female prisoner population has risen by 90 per cent? Have women all of a sudden become more bad? I diplomatically suggest that it may have something more to do with how the judiciary views women and women who offend. Therefore, society needs to have some say in how sentencing is operated.
Is Angela Constance aware that the percentage of convicted women offenders who are given custodial sentences is completely out of sync with that for male offenders? Women do not get sent to prison for serious crime to the extent that men do.
Mr Aitken knows that I am no fan of benevolent paternalism in that many of the issues that women offenders face are exactly the same as many of those that the poor young white men in our prisons face, whether mental health or illiteracy. I am no statistician, but I would be interested to know whether Conservative members support the Equal Opportunities Committee's work on women offenders, led by Margaret Mitchell. Perhaps the Conservative party could address that in its closing speech.
I support the Scottish Prisons Commission's view that prison should be used wisely and sparingly. We have a misplaced confidence in prison. As Stewart Maxwell said, it is counterproductive and, as Robert Brown said, it disnae act as much of a deterrent. I commend the Government and the cabinet secretary for showing leadership in the bill and not being feart to lead the way and lead the debate.
I want to raise three issues, but I suspect that I will have time to raise only one of them, which is the proposal to raise the age of prosecution instead of raising the age of criminal responsibility. In my view, that just does not go far enough and is therefore not in keeping with the bill's ambition. While unruly certificates will be gone and children will be remanded in local authority care in secure units and not prisons, I note the Commissioner for Children and Young People in Scotland's concern that the proposal may not meet our international obligations. I agree with my colleague Aileen Campbell that children are not mini-adults.
You should finish now, Ms Constance.
I will finish on that point.
I call Rhoda Grant. You have a very tight five minutes.
I will address the changes to non-harassment orders in section 15 of the bill, which I do not think anyone has dealt with yet. I very much welcome section 15, but I feel that it does not go far enough. Many victims of abuse would benefit from a non-harassment order, but we can see from the financial memorandum that that disposal is seldom used. In 2006, 24 non-harassment orders were granted; in 2007, the figure was 23; and in 2008, there was a slight rise to 29. Contrast that with the figure that David McLetchie quoted of 53,681 cases of domestic abuse reported to the police—that shows a lamentable level of intervention by our courts.
When I visited Australia and New Zealand in October, I met people and agencies that are involved in combating domestic abuse. I was impressed by the seamless support that they give. I was especially surprised to see how much it was driven by the police and the justice department. In Australia, the police have powers to put in place a 24-hour injunction without the support or agreement of the victim. The injunction is formalised in court, and justice officials support the victim through the process and ensure that the court hearing occurs prior to the injunction being spent.
There is also real recognition of the damage that is done to a child who is brought up witnessing domestic abuse. Children, too, have access to the injunctions in their own right and can seek them with the support of children's services. However, children's services can apply for an injunction on the child's behalf without their agreement. The abuser can then be removed from the home and resources can be put in place to support the children and the non-abusive parent.
The victim does not need to take any action and is not responsible for their own protection: the state is. That protects them from retribution, but it also takes into account the distinct nature of domestic abuse. It is the only crime I know of where the victim can be complicit in covering up the crime. That is because, by the time a recognised offence takes place, the victim has been undermined to the extent that they almost accept what is happening to them. The abuser ensures that the victim's confidence and self-esteem is slowly undermined; only then does the physical abuse start.
In this country, we prosecute only the physical abuse; there is no offence that covers the mental abuse. That means that, when the relationship becomes violent, the victims often blame themselves. In many circumstances, they also feel unable to exist outside the relationship, so they tend to become the best witness for the defence. That is why Women's Aid puts so much emphasis on building a victim's confidence and self-esteem. Only after that has happened are they able to take steps to protect themselves and their children. We put the onus on victims to protect themselves; that does not happen with any other crime of assault, far less with crimes against property.
The bill amends the Criminal Procedure (Scotland) Act 1995 to enable the Crown Office and Procurator Fiscal Service to apply for a non-harassment order against a person who has been convicted of crimes involving harassment. The order is not a conviction in itself, but it guards against future harassment. A breach of the order is a criminal offence, which can be punished by up to five years in prison. An order can be applied for where there is evidence of a course of conduct, involving convictions for harassment. It cannot therefore be applied for unless there has been at least one previous conviction for harassment and the current incident before the court has also led to a conviction.
My reading of section 15 is that the amendment of the 1995 act lowers the barrier from "harassment" to "misconduct towards the victim". However, it is not clear from the bill or the explanatory notes what offence would encompass "misconduct towards the victim" and whether it would be prosecuted or lead to a conviction. However, it is clear from the guidance that a previous conviction is still required, albeit for a lesser charge. The change also makes it easier for evidence of previous convictions to be presented to the court, but that does not remove the need for a previous conviction. It removes the requirement for a course of conduct amounting to harassment, but leaves the requirement for a course of conduct regarding "misconduct towards the victim", which will have to lead to a criminal conviction. It is ludicrous that, in this most difficult of crimes to prosecute, a course of conduct is required. If an offence has been committed, a non-harassment order should be granted; one offence is one too many and any future recurrence should be prevented.
I ask the Government to lodge amendments at stage 2 that would give greater protection.
You must close, please.
The state needs to protect all victims of crime.
I am grateful to members for ensuring that we finished that session on time. The debate will continue this afternoon.