Justice Committee

Meeting date: Tuesday, November 15, 2016

Official Report 587KB pdf

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Subordinate Legislation

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Home Detention Curfew Licence (Amendment) (Scotland) Order 2016 [Draft]

Agenda item 2 is subordinate legislation. I welcome Annabelle Ewing, the Minister for Community Safety and Legal Affairs—a frequent visitor to the committee—to speak to the draft order, which is an affirmative Scottish statutory instrument.

Accompanying the minister are Quentin Fisher and Susan Bulloch, both from the community justice division, and Craig McGuffie, from the directorate for legal services. You are all welcome. I remind the minister that officials are permitted to give evidence under this item but not to participate in the formal debate on the instrument under item 3.

I invite the minister to make an opening statement.

Good morning, convener. I am pleased to have the opportunity to speak briefly to this draft SSI.

The draft Home Detention Curfew Licence (Amendment) (Scotland) Order 2016 amends section 3AA(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 by repealing paragraphs (f) and (g) of subsection (5), which in turn refer to sections 16 and 17 of the act. Section 3AA(5) of the 1993 act provides a list of circumstances to which the Scottish ministers’ power to release a prisoner from prison under section 3AA(1)—known as home detention curfew or HDC—does not apply. HDC is a form of release from prison for up to six months prior to the halfway stage of the prisoner’s sentence. During that period, the prisoner is tagged and is subject to a curfew condition, which is remotely monitored.

Section 3AA(5)(f) of the 1993 act, which the SSI seeks to remove, permanently prevents the granting of HDC to a prisoner where the prisoner has previously been released on licence but has then been recalled to prison either for non-compliance with their licence conditions or because they have received a further sentence of imprisonment before the expiry of their sentence.

Section 3AA(5)(g) permanently prevents the granting of HDC to a prisoner where the prisoner has previously been released from prison during the term of their sentence but has then been returned to custody during that time for committing a further offence.

The repeal of those two paragraphs will mean that such prisoners may be able to obtain HDC. However, their release will still be at the discretion of Scottish ministers, exercised via the Scottish Prison Service. The granting of HDC is not guaranteed. In deciding whether to grant HDC, the Scottish ministers, via the Scottish Prison Service, are obliged to carry out a stringent risk assessment and to take account of the need to protect the public.

The repeal of the paragraphs implements one of the recommendations that was made in October this year by the electronic monitoring in Scotland working group, which consisted of experts from the Prison Service and the police as well as independent researchers, social work practitioners and a representative of Scottish Women’s Aid. In making the recommendation, the working group pointed to the fact that permanently excluding low-risk prisoners from applying for HDC does not recognise an individual’s progress in terms of rehabilitation and improvements in compliance and motivation to desist from offending. Indeed, the working group considered that the fact that someone was recalled at 18 years of age for breaching their HDC licence should not preclude them from applying for HDC at a later stage of their life.

Finally, it should be noted that a number of exclusions from HDC will remain. Those include life prisoners, sexual and violent offenders who are serving an extended sentence imposed under section 210A of the Criminal Procedure (Scotland) Act 1995, and sex offenders who are subject to the notification requirements in part 2 of the Sexual Offences Act 2003.

I am happy to take questions.

If the powers were to be granted, does the minister expect to use them extensively or sparingly?

Scottish Government ministers would make such decisions via the Scottish Prison Service. For example, if a long-term prisoner were involved, the legislation would apply only if the Parole Board for Scotland had made a recommendation for release at the halfway stage. Therefore, the decisions would be made by the practitioners on the ground, and it would be a matter of looking at each individual case to determine what should happen in the circumstances.

May I press you on the matter? You are asking the committee to recommend to the Parliament that Scottish ministers should be given more powers. Do you anticipate using the powers a lot, a little, or not much?

I am saying to the member that although the exercise of the powers would be, statutorily, at the discretion of Scottish ministers, in practice, that would be done by the Scottish Prison Service. At the moment, it appears from the figures that we have that only 300 prisoners could possibly fall within the categories that I have mentioned.

Where in the report that makes the recommendation are the statistics that back it up? Page 50 of the report says:

“The Group therefore recommend that Section 16 and 17 Statutory Exclusions are removed and will include statistics as evidence in the final report.”

That comment is from the Scottish Government’s final report, but I am unsure where the statistics ended up.

Are you referring to the final report of the electronic monitoring in Scotland working group?

Yes.

The report was, of course, drawn up by those who sat on the working group, which, as I said, comprised a number of organisations, including the police, the Prison Service, social workers, the violence reduction unit, Scottish Women’s Aid and G4S monitoring. Those were the people who produced the report.

The report states on page 50 that the statistics behind the recommendation will be included “in the final report”, but they have not been included. Where are they?

I will ask the officials to clarify the position. I do not know whether a further annex is required to go along with the report.

There is no further annex as far as I am aware. We can follow up on that and let you know if you wish.

Is it not quite an omission for a minister and Government officials to come to the committee and, in asking us to support an instrument, refer to a report that says that the statistics are in the report, when the statistics are not in the report?

I apologise if there is a reference to something that has not been added to the report. However, the report was drawn up by an expert working group that comprised all the members that I cited. I do not imagine that the member is trying to suggest that they are basing their recommendations on evidence that—

What I am trying to suggest—

—they do not regard as robust and satisfactory.

If I can continue, minister, I am trying to suggest that the experts felt that the issue was important enough to write in the report that they would

“include statistics ... in the final report.”

That is said in the Scottish Government’s final report, but the report makes no mention of the statistics that apparently back up your proposal to the committee and to Parliament.

The proposal in the SSI follows on directly from recommendation 7 of the expert working group, whose membership I have referred to—

Several times, but—

—and I think that all members would accept that the group’s membership was independent and comprehensive.

Perhaps I could intervene here, minister. That evidence is important in relation to the SSI. It is reasonable to expect that you and your officials looked at it and that you would come to the committee prepared with the information.

With respect, I have come prepared, having read in detail the electronic monitoring in Scotland working group report. If there was an addendum with any stats that were looked at, we would be happy to provide that to the committee, whether that is referred to on page 50 or any other page.

I am saying that the proposal in the SSI that we are putting before the committee today takes up directly recommendation 7, which is one element of the expert working group’s proposals. The group has, I think, been considering its work since 2014, which is a period of some 16 months, and a national conference for 150 experts working in the criminal justice sphere and 12 national events were held.

All that work culminated in experts and representatives from a comprehensive section of the criminal justice fraternity in Scotland producing recommendations, one of which we propose to take up in the SSI that is before the committee.

Nonetheless, minister, I would have expected you to bring to the committee meeting at which we are considering the draft order the statistics to which the working group refers .

May we have more information on the 300 people who are potentially subject to the removal of the exclusions? What sentences are they serving? What offences have they been convicted of?

There will be a mixture of sentences, but as I said—[Interruption.] Please allow me to answer the question. It is important to restate, for the benefit of committee members and others who are listening, that a number of key exclusions from the HDC system will remain if the committee today sees fit to recommend approval of the SSI. They include life prisoners, sexual and violent offenders who are serving an extended sentence, and sex offenders who are subject to a notification requirement. Those exclusions from the HDC system will remain ab initio.

As for other prisoners to whom the provisions will potentially refer, there will be a whole cross-section, and applications will be looked at on a case-by-case basis. I hope that that answer was helpful.

Well, no, because you said earlier which prisoners will not be included, which I fully understand. What I want to get on the record is that there are people who have been convicted of a range of offences that affect communities and individuals and who will be released into the community if the SSI is approved, and that over the past decade such people would not have been released into the community on home detention curfew.

The people whom the SSI is designed to deal with are those who committed a breach of licence conditions and those who committed another offence while on a community sentence. Those are the categories of prisoner who would be eligible for consideration, but HDC is by no means automatically granted. It is dealt with on a case-by-case basis and is subject to a stringent risk assessment, which includes, above all, consideration of public safety interests. Those conditions pertain today, as they will do tomorrow, and the key exclusions will remain in place.

You are saying that, based on your figures, up to 300 people could be released, and that the reason for the SSI is to give such people hope of getting out on HDC, when they have not been able to hope for that. However, such an approach could have a negative impact on communities, who will feel that there is no deterrent to committing crimes for offenders who are on community sentences, because the exemption will have been taken away and it will be acceptable for such offenders to be put forward for home detention curfew. I worry about the negative message that that sends to our communities, who are already suspicious about the efficiency and effectiveness of community sentencing.

You raise wider considerations about the HDC approach, which is one strand in community justice. From memory, I think that HDC has been in operation since about 2006 and has applied to certain categories of prisoner. The SSI that we are discussing will seek to make possible, but not automatic, the granting of HDC to people who committed a breach while on licence and those who committed a crime while serving a community sentence.

Practitioners in the field have made this point. If a man who breached a condition while on licence as an 18-year-old then finds themselves before the criminal justice system again some years down the line, should he be excluded from the possibility of HDC? HDC is seen as a useful tool in furthering rehabilitation and reintegration into the community, thereby reducing reoffending, which I think is what we all want. As I said, there is always a stringent risk assessment, with consideration on a case-by-case basis and public safety at the heart of the process.

Can you give us an indication of the level of oversight that ministers will have in practice when making a decision? Will they simply act on recommendations that are made to them, or will ministers themselves look in detail at the individual case and make the recommendation?

Although in statute the decision is the Scottish ministers’ decision, decision making is in fact exercised through the Scottish Prison Service. Perhaps a community justice official would like to give an example of how the process works.

10:15  

Once an individual prisoner has reached the quarter stage of their sentence, the SPS would ask criminal justice social work for a home assessment. The report would include the circumstances at the home address that the prisoner was going back to, such as who lives there and whether they would be happy if the prisoner was released back to that address. The report would go back to the SPS, which would consider it along with the risk that might be posed to public safety. If the SPS was happy that the person could be released, they would be released on a tag to serve the last quarter of their prison sentence in the community.

The tag can be used for a 12-hour curfew, for example. The service operator’s compliance monitoring is rigorous—it is 24/7—and any breach can be seen immediately. Scottish Women’s Aid sat on the expert working group and it sees the opportunities created by electronic tagging of whatever kind as a means of better controlling where a perpetrator might be, through such things as exclusion zones. That further work is in scope at the moment and has been seen as having benefits.

Although I am grateful for the explanation, it does not quite answer the question that I posed. If someone is out on licence and a breach occurs, and at a later stage there is an opportunity to recommend that they are released again on home detention curfew, do ministers make the decision or do they endorse a decision that is made somewhere else?

The SPS, which is an agency of the Scottish ministers, makes the decision.

What guidance and criteria will be applied? Specifically in relation to the 300 prisoners, are there instances when you may overturn a decision?

I ask the legal department to answer that.

A decision taken by the Scottish Prison Service would be a decision by the Scottish ministers; the SPS is an executive agency of the Scottish ministers, so its decision stands as the decision of the Scottish ministers. It would not be the case that the Scottish ministers would overturn it, although that might happen at an administrative level before a decision was taken. If the SPS intimates a decision to the justice directorate at St Andrew’s house, there may be some involvement. For example, the cabinet secretary might say that they do not a want a certain high-profile prisoner who is going to apply for HDC to be let out, but the decision is ultimately taken at SPS headquarters.

So although it says in our paper that

“Ministers will have discretion to release those prisoners from prison on HDC”,

it is not actually ministers but the SPS—

It is ministers, but the decision is taken by the SPS, through delegated authority.

Minister, you gave the example of someone who had committed a crime when they were 18 years old and then committed another crime later in life. He is currently excluded, but if the SSI is approved, he will no longer be excluded. Will offenders have the opportunity to apply only once to ministers to exercise their discretion to release them on HDC, or will they be able to apply five years later if they are in prison again? How many opportunities will they have?

It works the other way round. I return to Susan Bulloch’s point about how the assessment of who is eligible is made. HDC is for those who are considered short-term prisoners; or, if they are long-term prisoners who qualify for automatic early release, it becomes a decision for the Parole Board that a prisoner can be released halfway through their sentence. This kicks in six months prior to that. I am not sure that the prisoner would apply; rather, the criminal justice service may start the process where it finds it to be appropriate.

Could an application be made more than once, if an individual offended regularly?

Yes. HDC comes in during the six months up to the halfway stage of the sentence, so there is only a very short window in which the prisoner can apply for it. In general, if someone is refused HDC once, it is unlikely that HDC will be considered again for that sentence, but they could apply again if they were subject to further sentences in the future. I do not know how the application process works, but I know that the prisoner or the residential manager in the prison kick-starts it. HDC can be granted once for that sentence.

The amendments will mean that someone who has been recalled from licence under a previous sentence can apply in future sentences. If they were to be sentenced three, four or five times in the future, they could apply each time. The information that can be considered by ministers would include the previous release on licence and the recall. That could count against that prisoner in the Scottish ministers’ consideration of the decision.

Statistics are of course important, but it is the individual prisoner that matters. I am very supportive of this direction of travel. You have said that certain categories of prisoner will be excluded. It seems that we are in danger of cutting off our nose to spite our face if we exclude the group under discussion.

Can you confirm that there will be an on-going risk assessment that includes the community impact, in addition to the comprehensive risk assessment that is carried out at the time that the recommendation is made for the individual?

Do you mean after a decision to grant has been made?

Yes.

There is compliance by the service operator on a 24/7 basis. A long-term prisoner will also be supervised by criminal justice social work. There is on-going monitoring and the licence can be revoked immediately if there is a breach of compliance. There is a very robust system. Statistics have different elements to them, but I understand that in the first six months of the year, some 90 per cent of the HDCs that have been granted have been successful, in that there has not been a breach. That is a high figure.

There is also the question of support. The resource that would have supported an individual in prison is not automatically transferred to the community. Are you content that there is sufficient resource in the community?

Yes. The working group’s report raised the issue of wider support as we look forward to the opportunities that further electronic tagging and monitoring present. Mr Finnie raises an important point about support and we will have to consider that very carefully because we have to make those developments work. It is also important that we make them work for victims. We have been working on those issues with victims organisations and will continue to do so.

I have a wee question about monitoring technology and its development. I put this general question in the context that we know from extensive research that sentences served outside prison are much more successful in reducing reoffending than sentences where people spend a lot of time in prison, albeit the categories of prisoners may be slightly different.

Is the technology that is used to monitor HDCs continuing to improve and, as such, is it a more effective way of keeping track of people serving sentences outwith prison?

I am not an expert on the technology. I am sure that its improvement is exponential, as with all technology. One of my officials can give further information on that.

We currently use radio frequency—RF—technology. One of the working group’s recommendations was that steps should be taken to introduce new technologies, with the global positioning system being the obvious one. However, we would have to change primary legislation in order to introduce GPS technology. That work is on-going.

Thank you for attending today, minister. Do you think that the report and the subsequent decision and recommendation that we have in front of us reflect the ever-growing body of evidence that Stewart Stevenson referred to, which shows that, apart from in the most serious cases, custody does not lead to a reduction in reoffending? Will the decision bring us into line with other, perhaps more progressive, European nations?

The report refers to some international comparison studies that have been made, and I think that work is going on at the University of Stirling in particular into the situation in Council of Europe countries.

What the member suggests is right: robust alternative options, in terms of community sentencing, that are properly monitored and resourced and which, of course, exclude the most violent and heinous criminals, provide a way to ensure that we make some progress in tackling community justice issues and reoffending. If we can make progress in those ways, we will reduce reoffending; presumably, that is the goal that we all want to achieve, including the individuals who are caught in this cycle and, certainly, the communities that are blighted by offending. That is the direction of travel that we would hope to proceed in.

Could you clarify the issue of ministers’ discretion? That sounds quite straightforward, but your evidence seems to suggest that it is the SPS that would have the discretion, and that ministers would not overrule that. Is that the case?

The Scottish ministers’ discretion, which is set forth in statute, is exercised via the executive agency of the SPS. That has been the case since HDC was brought to book in 2006. The situation has not changed. It is exactly the same today as it would be tomorrow.

Did I perhaps misunderstand Mr McGuffie when he said that there might be a case in which there was a known criminal and the minister might intervene?

Ultimately, the SPS is an executive agency of the Scottish ministers, so the Scottish ministers still have some element of control, although I do not know whether the exercise of that control would be welcomed by Mr McConnell. Certainly, if, for example, there was a situation in which a high-profile prisoner wanted to be put on HDC and the cabinet secretary did not think that that was a good idea, the cabinet secretary could exert some influence over the SPS. However, ultimately, the decision would be for the SPS, taken under delegated authority, and that decision would be the decision of the Scottish ministers, because the SPS is an executive agency of the Scottish ministers.

I am a bit nervous about getting into the situation that we get into all too frequently with police matters, in which we are told that any problems are an operational matter for Police Scotland. What you are saying sounds kind of similar to me.

Minister, I am going to ask you not to move the motion at this time. I would very much like to see the statistics. It is quite reasonable to say that the committee should have had them today. The statistics were referred to by the working group and I think that, to enable us to give the matter full consideration, the committee should have the opportunity to see them before the motion is moved.

I would still like to move the motion. The report is quite detailed. I do not know whether every member has a chance to read the report, but it is the culmination of 16 months’ work. If members had wanted to proceed with individual research beyond the report itself, they could have proceeded to do that. The report is comprehensive. The composition of the expert group was comprehensive across the criminal justice system, and included experts in their fields with independence of mind. I am not quite sure why we are putting the report into question, convener.

We are not putting the report into question. You and your officials have come to the committee today unprepared, without statistics that are referred to in the report. I find that unacceptable. For that reason, I am asking you not to move the motion.

I hear what you say, and I do not want to disrespect the office of the convener of this committee. I feel that, in the circumstances that I explained a moment ago, it would have been for members to pursue in their own time individual research beyond the report itself. However, the officials tell me that it would not be a critical issue if the motion was not moved today so, on that basis, I am prepared not to move it. If the convener could clarify what the committee seeks, that would be very helpful indeed.

10:30  

I am happy to do that. It is the statistics that were referred to during the discussion. I am grateful to the minister for confirmation that she does not intend to move the motion today. I thank her and her officials for attending.

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Community Justice Outcomes Improvement Plan and Performance Report (Scotland) Regulations 2016 (SSI 2016/309)

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Act of Sederunt (Fees of Solicitors and Shorthand Writers in the Court of Session, Sheriff Appeal Court and Sheriff Court Amendment) 2016 (SSI 2016/316)

Item 4 is consideration of two negative SSIs. I refer members to paper 2 and, in particular, to the Scottish Parliament information centre briefing on the act of sederunt, particularly page 2. I will take the liberty of reading exactly what that says, because it refers to a strong recommendation from the previous Justice Committee on the Courts Reform (Scotland) Bill:

“The Committee seeks assurances that there will not be a substantial rise in the level of court fees to pay for the reforms in the Bill and will monitor closely the outcome of the next consultation on fees in 2015 and consequent statutory orders.”

I remind members that the act of sederunt proposes a 24 per cent increase in court fees. It was very much the opinion of the previous Justice Committee that there should not be

“a substantial rise in the level of court fees to pay for the reforms in the Bill”.

As a member of the previous committee, I am more concerned with the actual figures than with the percentages. We are talking about £18. I am reassured that people who are on low incomes are exempted. The SPICe briefing says:

“The current exemption regime covers those on income-based social security benefits such as income support. Those in receipt of Civil Legal Aid are also exempted from paying court fees. This is notionally available to those with disposable incomes of up to £26,000”.

However, there is a caveat with that.

I am relaxed about the proposal.

I do not know how this works, but is it possible to get more information on some of the comments that were previously made? We are told that, two years ago, the Scottish Government said that it would take some time to get to full cost recovery but it is now saying that it has achieved it.

The briefing also states:

“The Scottish Government has indicated that it intends to look again at fees in 2018. At this stage, it is hoped to have better data”.

If we consider the negative side of that statement, does it mean that the Government is proposing the change with poor data?

That is a fair point.

The act of sederunt is part of a 10-year programme to recover the full costs, which started in 2006. It is appropriate that we proceed with it at this stage.

I agree with the comments made by John Finnie and Stewart Stevenson. The briefing clearly says:

“court fees are a small part of the cost of taking court action.”

I am inclined to look at the figures rather than percentages. That is the sensible way to proceed and I would not want to hold up the act of sederunt in any way.

I am not familiar with the background to that. John Finnie is right to pick out some of the safeguards that are in the system.

It would be helpful to understand what the trajectory is if, as Stewart Stevenson says, the process has been on-going since 2006. I am not clear why any undertaking would have been given to a previous committee that the direction of travel would not have continued along the path that this appears to be part of.

The point that has been made about the overall level of fees and the safeguards that are in place offers some reassurance, but I am at a disadvantage in not knowing the earlier undertakings that ministers appear to have given to the committee.

The principle was access to justice and that that should remain when looking at court fees; there should not be a substantial increase.

I take on board John Finnie’s point that the increase is relatively small in monetary terms. An important principle has been laid down today. If it is the will of the committee—it certainly seems to be—to approve the SSI, I am minded to move that we do that.

If there are no further comments, does the committee agree that it does not want to make any recommendation in relation to either of the SSIs?

Members indicated agreement.

I suspend the meeting briefly to allow witnesses to take their seats.

10:36 Meeting suspended.  

10:37 On resuming—