The Management of Offenders (Scotland) Bill will be considered at stage 3 on 25 June 2019. This briefing summarises the main issues which arose during stages 1 and 2.
The Scottish Government's Management of Offenders (Scotland) Bill provides for reforms relating to:
the electronic monitoring of offenders in the community - seeking to provide a set of rules for its use and extending the potential for monitoring
the disclosure of convictions - reducing the length of time most people with convictions have to disclose them and extending the range of sentences covered by rules limiting the need to disclose
the release of prisoners on parole - various reforms relating to the Parole Board for Scotland and the system governing parole more generally
In relation to electronic monitoring, issues considered during stages 1 and 2 included the use of electronic monitoring as a condition of release on bail. Its use was also scrutinised in the light of concerns arising about Home Detention Curfew. Relevant amendments agreed at stage 2 included one setting out a new offence of remaining unlawfully at large. This would apply in various situations, including where a person has failed to return to prison after being recalled for breach of Home Detention Curfew conditions.
The Rehabilitation of Offenders Act 1974 provides that, following specified periods of time based on the sentence imposed (not the offence), convictions may become spent for certain purposes. The general rule is that people do not have to reveal spent convictions and cannot be prejudiced by them. Substantive stage 2 amendment of the Bill in this area was limited to the possibility of convictions resulting in longer custodial sentences (over 48 months) benefiting from rules limiting the need to disclose.
The Bill does not seek to make any changes to arrangements under which spent convictions are disclosed (by way of higher level disclosures) due to the nature of the work/role involved. Proposed reforms in this area are set out in the Disclosure (Scotland) Bill - introduced by the Scottish Government on 12 June 2019.1
The Bill as introduced set out reforms relating to the Parole Board. The range of reforms was, by stage 2 amendment, broadened somewhat to cover the system governing parole more generally. Proposals for future reform are set out in a Scottish Government consultation on parole reform (published in December 2018 and closed in March 2019).2
The Management of Offenders (Scotland) Bill was introduced in February 2018, setting out reforms relating to:1
the electronic monitoring of offenders in the community - extending the potential for monitoring; both in terms of what other measures it can be combined with and the use of new technologies
the disclosure of convictions - reducing the length of time most people with convictions have to disclose them (eg when applying for work) and extending the range of sentences covered by rules limiting the need to disclose
the Parole Board for Scotland - various reforms relating to the composition, appointment, functions and governance of the Parole Board
The Parliament's Justice Committee was designated as lead committee for parliamentary consideration of the Bill. It took stage 1 evidence on the whole Bill during five committee meetings in April to June 2018. However, its stage 1 consideration was extended in light of concerns arising about the use and enforcement of Home Detention Curfew.
Under Home Detention Curfew, an offender serves part of a custodial sentence in the community, subject to licence conditions and electronic monitoring. In May 2018 James Wright was convicted of murdering Craig McClelland. Prior to the offence, Mr Wright had been released from prison on Home Detention Curfew. He breached this and was unlawfully at large at the time of the murder. Following the conviction, the Scottish Government asked HM Inspectorate of Constabulary in Scotland and HM Inspectorate of Prisons for Scotland to carry out reviews of the Home Detention Curfew regime. Both inspectorates reported in October 2018. The Justice Committee took further stage 1 evidence, with a focus on Home Detention Curfew, during three committee meetings in November 2018 to January 2019.
The Justice Committee's stage 1 report, recommending that the general principles of the Bill be agreed, was published on 31 January 2019.2 The Bill completed stage 1 with the stage 1 debate on 7 February,3 following which the general principles of the Bill were agreed without a vote. The Scottish Government provided a written response to the stage 1 report on 26 February 2019.4
Stage 2 included consideration of amendments arising from issues covered by the above mentioned inspectorate reports.
There were also amendments seeking to make changes in some additional areas. These included ones relating to the enforcement of fines and fatal accident inquiries. Amendments in these two areas were not agreed at stage 2.i
The above consideration was followed by publication of the Bill as amended at stage 2.5
Stage 3 proceedings (final consideration) are scheduled to take place on 25 June 2019.
Key dates in the Parliament's consideration of the Bill are set out below:
Bill introduced - 22 February 2018
Stage 1 Justice Committee evidence sessions - 24 April; 8, 15, 22 May and 5 June 2018
Stage 1 Justice Committee further evidence sessions - 20 November and 18 December 2018; and 8 January 2019
Stage 1: Justice Committee report published - 31 January 2019
Stage 1: plenary debate - 7 February 2019
Stage 2: Justice Committee - 2, 23 and 30 April 2019
An earlier SPICe briefing provides additional information on the Bill as introduced.6
Electronic monitoring may form part of the conditions of a community sentence or of release from a custodial sentence. In relation to the former, it is currently used in relation to restrictions on movement imposed by courts in connection with Restriction of Liberty Orders and Drug Treatment and Testing Orders. It may also be used to monitor restrictions imposed for breach of a Community Payback Order (not as part of the original order).
In relation to release from a custodial sentence, electronic monitoring is currently used to monitor compliance with restrictions on movement under Home Detention Curfew licence conditions. It can also form part of licence conditions imposed by the Parole Board for Scotland where it grants early release.
At present, electronic monitoring in all of the above situations is mainly used to monitor compliance with a curfew - through the use of a base unit along with an electronic tag on the individual's ankle.
The Bill as introduced sought to provide an over-arching set of rules for the imposition of electronic monitoring – both with regard to those situations where it can already be used and for a range of further circumstances. The proposed expansion of monitoring covered the use of new technologies (eg GPS and alcohol monitoring) as well as the monitoring of movement restrictions in the following additional situations:
Community Payback Orders (the original order)
Sexual Offence Prevention Orders and Sexual Harm Prevention Orders
temporary release from a custodial sentence (eg unescorted day leave)
To this list, a Scottish Government amendment agreed at stage 2 added Supervised Release Orders.
The Bill as introduced also provided that the Scottish Ministers could, by way of regulations, further expand the situations in which electronic monitoring may be used.
In its stage 1 report, the Justice Committee described electronic monitoring as having an important role to play in the criminal justice system, provided it is coupled with appropriate risk assessment, monitoring and enforcement. It stated that:
On balance, the Committee remains broadly supportive of the Scottish Government's plans for electronic monitoring and the relevant provisions in this Bill. In our view, electronic monitoring should only be used after a comprehensive assessment of risk, particularly for those individuals who would otherwise be incarcerated. (para 180)
Issues considered during stage 1 scrutiny of the Bill included:
risk assessment, monitoring and enforcement of breaches
additional interventions for people subject to electronic monitoring
the possibility of electronic monitoring as a condition of bail
Although of more general significance, much of the discussion of risk assessment, monitoring and enforcement was in the context of Home Detention Curfew. It is, therefore, covered in that section of this briefing.
The other two issues are dealt with below (see other interventions and bail conditions).
The extent to which electronic monitoring should be used along with other interventions aimed at supporting rehabilitation (eg provided by criminal justice social work) was considered during stage 1 scrutiny of the Bill. In its stage 1 report, the Justice Committee noted that:
As was consistently reiterated to the Committee in the evidence it heard, in the vast majority of cases, electronic monitoring has to be provided along with other support measures designed to ensure that the Scottish Government's policy objectives of improving community safety and reducing re-offending are met. Moreover, as is discussed later in this Report in relation to financial matters, the Committee emphasises that an increased use of electronic monitoring will only be successful if adequate budgets are put in place for criminal social work and the wider services that support people subject to such monitoring. (para 191)
It went on to ask the Scottish Government for information on any additional resources for other interventions which might be needed if there is growth in the use of electronic monitoring. In its written response to the stage 1 report, the Scottish Government said:
Development of the electronic monitoring service will be incremental and will only take place following piloting and testing of the new capabilities, hence the framing of the Bill in a way to allow for such pilots. Electronic monitoring is a demand led service, so any new funding requirements will be dependent on the take-up by the judiciary. (p 5)
When releasing a person on bail the courts impose a number of standard conditions and may, where relevant, impose additional conditions. However, it is currently unclear whether the courts have the power to impose electronic monitoring as a condition of bail. It has been argued that this option should be clearly available (eg to provide additional reassurance on public safety where it might otherwise be considered necessary to remand a person in custody).
Although the Bill as introduced did not directly address electronic monitoring as a condition of bail, the Justice Committee considered evidence on whether it would be a useful option. The question of whether the Bill is a suitable vehicle for giving the courts this option was also considered. As noted earlier, the Bill as introduced provided that the Scottish Ministers could, by way of regulations, further expand the situations in which electronic monitoring may be used. However, some witnesses were of the view that the way the power was framed (eg in referring to offenders) meant that it could not be used in relation to pre-conviction bail. For similar reasons, whether the scope of the Bill would allow for its amendment to clarify the position in favour of allowing extension to pre-conviction bail was questioned.
On the substantive point, the Justice Committee expressed support in its stage 1 report for the piloting of electronic monitoring as a condition of bail - provided there is proper risk assessment and support. As to whether the Bill could enable this, it noted:
the views of the representative of the Law Society of Scotland who indicated that any such amendments necessary to extend the provisions in Part 1 to cover pre-conviction bail would not be within the scope of this Bill, given that it focuses on offenders and that the Bill provides for the use of electronic monitoring when 'disposing' of a case. Additionally, the Committee notes the debate to be had on whether the regulation-making powers as currently set out in section 4 of the Bill would allow the Scottish Government to provide for electronic monitoring as a condition of bail. (para 199)
The Scottish Government's written response to the stage 1 report advanced the view that the regulation making power set out in the Bill as introduced would allow it to add bail, including pre-conviction bail, to the range of situations where electronic monitoring may be used. It added that the Scottish Government would bring forward an amendment at stage 2 to remove any doubt over this. However, during stage 2 consideration the relevant amendment was ruled inadmissible by the Convener of the Justice Committee on the basis that it was, in seeking to deal with pre-conviction measures, outwith scope. The Cabinet Secretary indicated that the issue might be considered again at stage 3.
It may be noted that a series of stage 2 amendments lodged by Daniel Johnson MSP, removing various references to 'offender' in Part 1 of the Bill, were agreed. They replaced such references with the phrase 'relevant person'. Daniel Johnson also lodged an amendment seeking to define the phrase as meaning "an individual who has been convicted of any offence". However, this amendment was not agreed, leaving the phrase undefined.
Under Home Detention Curfew (HDC) an offender serves part of a custodial sentence in the community, subject to licence conditions and electronic monitoring.
As noted earlier, following the conviction of James Wright for the murder of Craig McClelland, the Scottish Government asked HM Inspectorate of Constabulary in Scotland (HMICS) and HM Inspectorate of Prisons for Scotland (HMIPS) to carry out reviews of the HDC regime. Prior to the offence, Mr Wright had been released from prison on HDC. He breached this and was unlawfully at large at the time of the murder. Both inspectorates reported in October 2018:
The two reports made a total of 37 recommendations (16 by HMICS and 21 by HMIPS), all of which the Scottish Government accepted. In a statement to the Scottish Parliament on 25 October 2018, the Cabinet Secretary for Justice said:3
I make it clear at the outset that the SPS [Scottish Prison Service], Police Scotland and indeed the Scottish Government will accept all of the inspectorates' recommendations. The chief executive of the Scottish Prison Service and the chief constable have given me assurances that, in addition to actions that have already been taken, work to implement the recommendations is being taken forward as a top priority. (col 57)
He went on to say that he had "asked HMIPS and HMICS to review progress against their recommendations in six months' time" (col 59).
The Justice Committee took further stage 1 evidence, with a focus on HDC, during three committee meetings in November 2018 to January 2019. This included consideration of the recommendations made by the two inspectorates. Recommendations of particular interest to the Justice Committee included HMICS ones on:
a presumption against release on HDC where the offence involves violence, possession of an offensive weapon or having known links to serious organised crime
creating a new offence of remaining unlawfully at large following breach of HDC licence conditions
These recommendations are considered in more detail below.
In May 2019, the two inspectorates published reports reviewing progress against all their recommendations:
Both reported that the Scottish Government, Police Scotland and the Scottish Prison Service had made good progress in delivering relevant recommendations. They confirmed that some of their recommendations had been fully met and stated that progress on the others indicated that they were on track to be completed within a reasonable time-frame.
The recommendations in the HMICS report (published in October 2018) included the following on a presumption against release on HDC:1
Scottish Government in consultation with criminal justice partners and key stakeholders should consider development of national policy on risk factors that assess not only the eligibility of an offender for release on home detention curfew but his/her suitability for release based on a presumption of refusal where the conviction that the person has been sentenced for relates to violence, possession of an offensive weapon or having known links to serious organised crime. (recommendation 2)
This was, along with the other recommendations in the report, accepted by the Scottish Government. In fact, the HMICS review report (published in May 2019) noted that:2
Since October 2018 there has been a presumption in place that individuals whose index offence involves an act of violence or the possession or use of a knife or offensive weapon, or who have known links to serious organised crime, will not, in normal circumstances, receive Home Detention Curfews. (p 8)
The review report went on to emphasise that the original recommendation was only intended to apply to the index offence (ie the one which the person is serving the prison sentence for) and not any previous convictions. However, the approach to risk assessment adopted in light of concerns over the use of HDC went somewhat further. The Justice Committee's stage 1 report referred to evidence from the chief executive of the Scottish Prison Service to the effect that:
he now advised governors that if there is any indication that a prisoner had used a weapon or an implement against another person or any indication of meaningful or serious violence, no matter how far back that was, to be cautious in the decision-making. (para 151)
The change in approach to release on HDC has had a significant impact in reducing its use. The HMIPS review report (also published in May 2019) noted that:3
In 2018 there were approximately 300 offenders living in the community on home detention curfew with a successful completion rate of around 80%. There are now less than 60. (p 4)
The scale of the change has prompted some concerns over whether a shift in approach has gone too far, potentially denying suitable prisoners opportunities for managed reintegration into the community and contributing to prison overcrowding. The Justice Committee's stage 1 report indicated that it supported "an early assessment of the revised guidance issued to prison governors" (para 181).
Both review reports referred to the possibility of the revised guidance being subject to further change, with the HMICS review report noting that:
As application of the presumptions is being kept under review and may be subject to change as the Management of Offenders (Scotland) Bill progresses through the Scottish parliament, HMICS will continue to monitor the progress of this recommendation. (p 9)
And the HMIPS review report suggesting that:
There would be merit in engaging with additional agencies that may have an interest in evaluating HDC and its potential benefits, such as the Judiciary and the Parole Board for Scotland. This may deliver a new and equally credible model that would allow the numbers released on HDC or electronic monitoring to increase. (p 4)
The 2018 HMICS report on HDC also recommended consideration of a new offence:1
Scottish Government in consultation with criminal justice partners and key stakeholders should consider introducing a statutory offence where an offender who breaches his/her home detention curfew licence conditions remains unlawfully at large for a designated period of time. (recommendation 3)
This was also accepted by the Scottish Government, with the Justice Committee's stage 1 report noting that the Government intended to address the matter by amending the Bill at stage 2. It added that:
The Committee supports in principle the introduction of this new offence, however it will consider the detail of the offence and wider police powers if the Bill proceeds to stage 2. (para 189)
A prisoner may be categorised as unlawfully at large where early release on HDC or parole has been revoked, or temporary release has expired, without the prisoner returning to custody.
In a letter to the Convener of the Justice Committee, dated 15 March 2019, the Scottish Government set out information on its plans for creating a new offence of remaining unlawfully at large and amending existing powers of arrest.2 The letter also noted calls for additional offences associated with HDC (eg tampering with an electronic tag).
Relevant amendments considered at stage 2 included:
one lodged by Liam Kerr MSP seeking to make it an offence where a person contravenes certain standard obligations associated with electronic monitoring (not restricted to HDC) - amendment not agreed
another lodged by Liam Kerr seeking to create a power of arrest where said standard conditions are contravened - amendment agreed on the Convener's casting vote
Scottish Government amendments seeking to create a new offence of remaining unlawfully at large (not restricted to HDC) and clarify existing powers of arrest where a prisoner is unlawfully at large - amendments agreed without division
The HMICS review report (published May 2019) stated that:3
HMICS welcomes the Scottish Government's consideration of creating a new offence within the Management of Offenders (Scotland) Bill. We are hopeful that this new offence coupled with the clarification of existing powers under section 40A of the Prisons (Scotland) Act 1989 will address any perceived gap in police powers. As this new offence and associated clarification of existing powers is still under consideration by the Scottish Parliament we will review this recommendation once that Bill has completed its legislative passage through the Scottish Parliament. (p 10)
HDC is mainly used for short-term prisoners (those serving sentences of less than four years). However, it is also a possibility for long-term prisoners (those serving sentences of four years or more but excluding life sentences) where release on having served one-half of the sentence has been recommended by the Parole Board for Scotland.
During stage 2, the Scottish Government lodged an amendment to remove the possibility of release on HDC for long-term prisoners. In putting forward the amendment, the Cabinet Secretary for Justice noted that long-term prisoners comprise around 0.5% of those released on HDC. He argued that restricting HDC to short-term prisoners would help reduce the risks associated with release on HDC by removing from its ambit a category of prisoners with sentences reflecting more serious offending. However, various members of the Justice Committee questioned whether a general exclusion of long-term prisoners from HDC would actually help in ensuring that the risks associated with release are properly managed.
In light of concerns, the Cabinet Secretary withdrew the amendment with an understanding that he would discuss the matter with members in advance of stage 3.
The Rehabilitation of Offenders Act 1974 provides that, following specified periods of time based on the sentence imposed (not the offence), convictions may become spent for certain purposes. The general rule is that people do not have to reveal spent convictions and cannot be prejudiced by them. For example, they do not have to declare spent convictions when applying for work in most areas. Certain types of work (both voluntary and paid) are exempted from these provisions (eg where working with vulnerable groups such as children). The law is intended to strike an appropriate balance between supporting the rehabilitation of people with convictions and public protection.
The Bill as introduced sought to amend the 1974 Act, reducing the length of time people with convictions resulting in a wide range of sentences have to wait before the conviction is treated as spent. It also sought to extend the length of custodial sentences covered by the provisions of the 1974 Act (from the current 30 months to 48 months). Other proposed reforms included changes in terminology and to the impact of subsequent convictions on disclosure.
The Bill did not seek to make any changes to arrangements under which spent convictions are disclosed (by way of higher level disclosures) due to the nature of the work/role involved. Proposed reforms in this area are set out in the Disclosure (Scotland) Bill - introduced by the Scottish Government on 12 June 2019.1
The Justice Committee's stage 1 report stated that:
The Committee is broadly supportive of the direction of travel in relation to changes to the regime for the disclosure of convictions. The Committee agrees that an appropriate balance has to be struck between society or an employer's right to know about a person's prior convictions in some circumstances and the ability of a person with prior convictions to move on with their life without the stigma associated with a criminal conviction. (para 286)
Substantive stage 2 amendment of the Bill's provisions on disclosure was limited to one particular area - the possibility of convictions resulting in longer custodial sentences (over 48 months) being treated as spent. This is considered below.
The Bill as introduced included provisions seeking to increase the maximum length of custodial sentence in relation to which a conviction may become spent - from the current 30 months to 48 months. This was not altered at stage 2. The process under which a relevant conviction becomes spent applies without the convicted person having to submit any form of application.
Scottish Government amendments agreed at stage 2 added provision for a new process under which people with convictions resulting in longer custodial sentences would be able to apply to have them treated as spent. People who have received sentences in excess of 48 months, but excluding life sentences, would be able to apply provided that:
the 'appropriate period' has expired (the full length of the custodial sentence plus six years for people convicted as adults)
they are not subject to sex offender notification requirements
The process would involve application to a reviewer. The Scottish Ministers would have the power to set out how this would operate in detail by way of regulations. The Cabinet Secretary for Justice outlined the proposals during the Justice Committee's meeting on 23 April 2019:1
It is clearly the case that for a person to receive a sentence of more than 48 months, a serious offence must have been committed. However, a system that does not even permit the possibility of not needing to disclose under basic disclosure seems to be disproportionate. I emphasise the term 'basic disclosure'. We are not looking to change higher-level disclosure through the Bill. Amendments 105 to 108 provide for an enabling power for Scottish Ministers to lay regulations that would, in effect, create an independent review mechanism for certain sentences that are longer than 48 months. (...)
Organisations including the Howard League for Penal Reform in Scotland and the Scottish Centre for Crime and Justice Research called for steps to be taken to help those who receive longer sentences by allowing their convictions to be considered to be spent at some future date. The enabling powers will allow the Scottish Government to propose a future scheme, for full scrutiny by the Scottish Parliament through affirmative procedure, to allow exactly that.
The Parole Board is an independent tribunal. Its primary role relates to the possible release of a prisoner once that part of the sentence which relates to punishment and deterrence has been served in custody. It is tasked with assessing whether the level and nature of any risk a prisoner still presents at that point can be safely managed in the community. It also considers the conditions under which a prisoner may be released.
The Bill as introduced set out various reforms relating to the composition, appointment, functions and governance of the Parole Board. They covered some of the issues dealt with in a Scottish Government consultation on parole reform published in July 2017.1
In December 2018 (during stage 1 scrutiny of the Bill) the Scottish Government published a further consultation on parole reform, with a closing date in March 2019.2 In relation to the reforms being taken forward in the Bill, it noted that:
In 2017, the Scottish Government consulted on changes to the parole system, which emerged from the Parole Reform Programme. These changes are being taken forward through the Management of Offenders (Scotland) Bill which was introduced to the Scottish Parliament in February 2018. The provisions in the Bill make technical amendments to existing legislation, amend the tenure of Parole Board members, reinforce the independence of the Parole Board and provide for the administrative and accountability arrangements of the Parole Board to be set out in secondary legislation. (p 9)
With regard to additional reforms (not dealt with in the Bill), the further consultation stated that:
We wish to make further improvements to the parole process and the way the Parole Board operates. In particular, this consultation seeks views on how we can give victims a stronger voice in the parole process, how we can better support the Parole Board's decision-making and how to make the parole processes as open and transparent as possible. The consultation also seeks views on how we can further augment the Parole Board's independence, including seeking views on the option of transferring the Parole Board to the Scottish Tribunals (as created by the Tribunals (Scotland) Act 2014). (p 4)
The Justice Committee's stage 1 report stated that:
The Committee is broadly supportive of the limited reforms to the Parole Board as set out in this Bill. It is unfortunate, however, that this Bill is being considered at a time when a much more detailed consideration of the Parole Board is underway. It would have been helpful if the limited reforms that this Bill covers in Part 3 had been considered in the round as part of the wider consultation that is now underway. (para 339)
Amendments agreed at stage 2 included a Scottish Government amendment changing the oversight body for the appointment of Parole Board members to the Judicial Appointments Board for Scotland.
Mary Fee MSP lodged an amendment requiring the Parole Board, in considering the possible release of a prisoner, to take account of the likely impact of its decision on the prisoner's family. There was broad sympathy within the Justice Committee for the intention behind the amendment, but reservations amongst some members as to whether this was the best way to deal with the matter. In responding to the amendment, the Cabinet Secretary for Justice argued that it would be better dealt with in Parole Board rules and that the issue fell within the range of matters being considered as part of it's further consultation on parole reform. Following debate, the amendment was agreed on the Convener's casting vote.