Chamber and committees

I was not saying that we had an expectation that those people would reoffend. If you look at the incidence of reoffending, you will see that around 40 per cent of those prisoners went back to custody. However, that was not all for reoffending. As I mentioned, sometimes it was for reasons other than reoffending.

My point was that the average reoffending rate for those on short sentences is between 50 and 60 per cent. Therefore, although there was not an expectation that people would reoffend, the reoffending rate of 40 per cent is not surprising. In itself, that is an argument for more effective community justice disposals that allow us to deal with that reoffending. We know from the evidence that we have that such disposals reduce the likelihood of reoffending.

It might have been useful to have a reminder of the categories of prisoners who were released, how close they were to the end of their sentences and how long the sentences were. I think that the sentences were 18 months or less.

It is the case that people who have been released from prison sometimes reoffend. The incidence is higher when those people have been on short sentences. It is legitimate to say that the Prison Service has the time to deal with an offender if they are in prison over a greater period. When those people were sentenced, it would not have been expected that they would be released early. It happened because of the pandemic.

If your question is, “Why did you release those prisoners?”, the answer is that we did that because of the pandemic. We deemed the consequences of not doing it to be unacceptable, from the point of view of the constraints that it would put on our prisons and prisoners because of Covid, and from the point of view of the public safety of prisoners, prison officers, prison staff and people who visit prisons. That is why we released them.

Because the same situation could arise again in relation to Covid. We think that that is justifiable only up to 2025, if we are talking about Covid.

Why we would want to have the power on a permanent basis is a separate question. The same question could be addressed to the UK Government. I would imagine that its response would be that it is not always possible to anticipate whether it might be required to deal with a public health emergency or for some other reason. Different answers could be given as to the need for that.

The reason why we want to have the power in the current circumstances is that we do not yet know what the route path of Covid or its variants will be.

I think that it is right that we wait for the further processes that Cat Dalrymple mentioned to be gone through before we can be absolutely definitive, but if it is comfort that is being sought, I would just highlight two things. First, the fact that not one of the 285 cases in question has given rise to public protection concerns in the eyes of the experts who have looked at them is a good indicator of where we are at. Again, that is not definitive, and I am not trying to pretend that it is.

Secondly, in the light of some of the publicity that flowed from last week’s statement, I point out—and I cannot remember whether this is in our briefing or another that I have seen—LS/CMI is almost a general triaging tool. For someone who is, say, a sexual offender or who is seen as high risk to the public, because of violence, other tools as well as LS/CMI will be involved. That should provide you with reassurance.

I know that there was no time to take my opening statement, convener, but perhaps I can make a couple of other points that I highlighted in it, because I sought to address some of the questions that members, quite rightly, asked me last week in the chamber. Pauline McNeill and, I think, Jamie Greene asked about the technical nature of the update. I hope that members will see from the briefing that has been provided and from what Cat Dalrymple has said how technical the issue is, although I should say that I specifically asked for the language in the briefing for members to be as plain as possible, because it is sometimes quite difficult to understand the different aspects.

Moreover, in response to Stephen Kerr’s question last week about when all of this first came to light, I said that it was 24 January. However, the first person to see it was apparently an SPS individual on 13 January. I might have said that, too, but I certainly mentioned the 24 January date. That was when Government officials became involved and started running tests in parallel with the system. As I said last week, I was advised of the matter the previous Friday and then came to Parliament.

With regard to how quickly we came to Parliament, I would highlight a case down south that related to 400,000 prisoner or offender records, and there was no statement to the Parliament down there until after the event. I was keen to ensure that we did not do the same thing, and we therefore came to the Scottish Parliament as soon as possible. Coming back to Jamie Greene’s question, I point out that one consequence of that decision is that we do not have all the answers, because we are still working through this. We are providing as much assurance as we can—indeed, I think that the assurance that the 285 live cases have not raised any cause for public concern is pretty substantial.

There are probably one or two other questions that were asked last week that I have tried to deal with if not in the briefing then in the opening statement that I would have made. I hope that that gives some reassurance, too.

I think that I mentioned in response to a similar question from Mr Findlay after my statement last week that I hoped to be able to give him a reassuring response. I have not granted any first grant of temporary release, but it is also true that that function has been carried out for a number of years now by the justice portfolio minister—in this case, that is the Minister for Community Safety. A reconciliation of the Scottish Prison Service system and the identified affected cases has been carried out, and eight cases in which first grant of temporary release have been granted were found. All of those have been looked at again, and I can confirm that no immediate or concerning public protection risks were highlighted. However, those eight cases will be further reviewed by the risk review group, which I mentioned in the statement last week, to provide further assurance.

Yes, and I think that I have said so already. That would not happen through the bill, which relates to the pandemic, but we are actively involved in that dialogue with the judiciary. There are two routes for doing it, one of which is a practice note from the judiciary. However, that would take things only so far, and I think that it is fair to say that the judiciary’s preference would be for primary legislation.

I think that those issues are relevant, especially if we are looking to make the approach permanent, which might be possible through other legislative processes that are coming forward.

We are considering the issues. I read the evidence that was given to the committee by the Scottish Solicitors Bar Association and others, and I acknowledge some of the concerns that have been raised. I note that, a number of months ago, the Faculty of Advocates raised with us the issue of digital exclusion, which we are looking to address.

That said, on the other side of the argument, you might have heard Rhoda Grant talking yesterday about how beneficial the approach can be in domestic abuse cases and cases in rural areas.

As ever, there are arguments on both sides, and we want to take those into account, along with things that we learn from the pilot projects, before proceeding further.

It is possible that, given its powers, the judiciary could advance the approach in the meantime, through a practice note. However, for the reasons that you mention, I think that its preference would be to have legislation. There are a lot of things to work through in relation to the approach. On the surface, it seems appealing, but some people—especially those who are most closely involved in the process, such as defence representatives—have concerns that we want to address as best we can.

Some of that pre-dates my time as justice secretary. We have had a constant dialogue with all justice partners on the issue. The 16 additional courts involve court service staff, defence lawyers, prosecutorial staff, sheriffs and so on, so there has been a very big increase in their workload. We thought that providing those courts was the most effective way to tackle the backlog, and I still think that. Others might have different ideas, but we think that that is how to tackle the backlog. The decision was made following maximum consultation with justice partners. Such a radical step could not have been taken without discussion and consultation with, and the consent of, justice partners.

The prisoner release took place just before I took up office. One of the first things that I had to do on coming into office was to read voluminous tracts on public health and the framework that had to be applied to prisons.

I think that it is true to say that prisons will have learned from that. They have heard that question—it is not the first time that it has been asked—and I am sure that we would want to give the matter further thought. I think that, in some cases, there were good reasons for not testing prisoners, but each time we do something new, we want to learn from previous experience.

First, I reiterate this Government’s, Scotland’s and, I assume, this Parliament’s unqualified support for Ukrainian sovereignty, independence and territorial integrity, and our unequivocal support for the package of international economic sanctions against the Russian invasion. I am sure that the whole Parliament will be united in supporting the actions that we are taking to address this flagrant violation of international law by Putin’s regime.

The people of Ukraine should know that Scotland stands with them in the face of this unprovoked and unjustifiable aggression against their nation, and they can be assured that we will take all possible steps to sever ties to Putin’s regime and those individuals who support it.

That is why I am seeking the agreement of Parliament to the legislative consent motion on the Economic Crime (Transparency and Enforcement) Bill, which was introduced into the United Kingdom Parliament on 1 March. The bill has passed its Commons stages and is with the House of Lords. The bill introduces a register of overseas entities—ROE—and strengthens measures around unexplained wealth orders and the enforcement of sanctions. That will help the UK to counter illicit financial activity from Russia and elsewhere more effectively. The Scottish Government shares and supports those objectives and the provisions in the bill.

I intend to talk briefly on the measures in the legislative consent memorandum separately. Part 1 of the bill creates a register of overseas entities to provide transparency of beneficial ownership across the UK to tackle money laundering. The register will apply to all overseas entities that own land in Scotland and throughout the UK, which will have to provide information about their beneficial owners to Companies House. The register is designed to prevent criminals from hiding behind anonymous companies and from laundering money in UK property, and it will provide more information for law enforcement to help track down those using UK property as a money-laundering vehicle.

Property law, its interface with company law and the interface with the legal systems of jurisdictions around the world are a very complex matter. Broadly, the split between devolved and reserved powers lies not in the powers in this UK Government bill but between the entities to which it applies. I will use an example to illustrate that: a registered overseas company would fall within reserved powers, but an overseas charity would fall within devolved powers. That means that the ROE provisions legislate, to that limited extent, for devolved competence.

We have liaised with the UK Government over the proposals for a number of years, and I especially welcome the engagement over the past week. UK Government ministers wrote to me yesterday to confirm that they will be tabling an amendment, to be considered during the Lords committee stage, introducing a statutory mechanism to consult the Scottish ministers on regulations made under the sunset clause in the bill.

Transparency of ownership has long been a key objective of our land reform policy, and the Land Reform (Scotland) Act 2016 included provisions to establish a register of persons with a controlled interest in land—RCI. The establishment of the register was delayed slightly by the pandemic, but it is on track to be launched on 1 April. Although the policy objective of the RCI is to shed light on who is responsible for decisions about property, whereas the ROE seeks to tackle money laundering by shedding light on who benefits from that property, there is clearly some overlap and, in due course, we will review any duplication. Together, the RCI and the ROE will provide a better understanding of who owns, controls and benefits from Scotland’s land—questions that we have been seeking to answer for a very long time.

Part 2 of the bill seeks to strengthen the system of civil recovery of property that has been obtained through unlawful conduct by improving the effectiveness of the unexplained wealth order investigative procedures, assisting enforcement authorities in taking action against kleptocrats and criminals who are laundering funds in the UK.

The reforms will help to allow UWOs to be sought against property that is held in trust and other complex ownership structures. In Scotland, the civil recovery unit, acting on behalf of the Scottish ministers, can apply to the Court of Session for a UWO. The unexplained wealth order is just one investigatory tool under the Proceeds of Crime Act 2002, but it is a powerful one. It is a court order that requires persons who are suspected of being involved in or connected with serious criminality, or who are politically exposed persons, to explain how they obtained certain property where the value exceeds their known, lawfully obtained income.

The bill includes provisions that will assist enforcement authorities to investigate the origin of property and thereby recover assets that were obtained through unlawful conduct. The bill increases the scope of the existing powers in the 2002 act, expanding the list of persons against whom UWOs can be sought and enabling them to be served on a person who is a “responsible officer” and is expected to have some control of the asset.

For situations where the property holder was not responsible for financing the acquisition but it may have been obtained through unlawful conduct, the bill contains an alternative test to the income requirement that must currently be met for UWOs. That will help to ensure that property that is held via complex ownership structures will fall within the scope of the UWO regime.

The bill provides a power for the Scottish ministers or the Lord Advocate to seek an extension to the length of an interim freezing order, which prevents a person from dealing with any property that is subject to it. The bill will increase the time to a total of 186 days for the civil recovery unit or the Lord Advocate to review material that is provided to them.

The bill will also reform the court expenses rules so that expenses are payable by the Scottish ministers or the Lord Advocate in court actions relating to an UWO only if they have acted improperly.

The LCM sets out the relevant provisions that require consideration by Parliament in so far as they fall within this Parliament’s legislative competence or confer functions on the Scottish ministers so as to alter their executive competence in relation to devolved matters.

It is worth noting that the bill also seeks to strengthen sanctions measures, which fall outwith the LCM, in the light of Russia’s aggression towards Ukraine.