Meeting of the Parliament

Meeting date: Tuesday, June 4, 2019

Official Report 985KB pdf

---

Whole-life Custody Sentences

The next item of business is a debate on motion S5M-17503, in the name of Liam Kerr, on whole-life custody sentences.

14:22  

Imagine you are sitting in the High Court in Glasgow. You have spent weeks or perhaps even months sitting through a trial for the brutal, calculated and remorseless murder of someone you love. It has been emotionally draining and traumatising. It has forced you to relive every excruciating detail. Now the verdict has been returned: guilty. The judge addresses the court. He says that he has no option but to impose a sentence of life imprisonment. However, some time later—perhaps after 14 years, or 16, or 20—you receive a letter that tells you that the person who murdered your loved one is being considered for release on parole. They will be back on the streets in your community and free to offend again.

That happens, Presiding Officer—

Will the member take an intervention on that point?

I will.

I am grateful to the member. I know that he does not like the Parole Board for Scotland, but does he have no confidence at all in its judgment in these matters?

I thank Mr Finnie for the intervention. On the contrary, the Parole Board does a very difficult job. The point that I am making, if he will allow me to develop my argument, is that we need to give judges the power to put down a whole-life sentence so that the Parole Board is not in the position where it has to consider the matter.

As I said, that happens. “Life imprisonment” does not mean life imprisonment. It is time to give judges the power to sentence as they say it. It is time to say to victims, their families and the Scottish public that when our judges hand down a sentence of whole-life custody, they mean it. It is time to give judges the genuine, unmitigated ability, which we should remember they do not currently have, to put the very worst offenders behind bars for the rest of their lives.

Will the member take an intervention?

I ask Mr Johnson to be very quick.

Is that actually correct? Do judges not have the ability to request an assessment for an order for lifelong restriction, which would do exactly that, if the risk is posed by the individual?

There is an awful lot of misunderstanding in the debate about whether judges in Scotland can hand down a life sentence. It is very disappointing to see such errors creep into Mr Johnson’s intervention and the Scottish National Party amendment to the motion, so let us take some time to understand the reality. When a judge in Scotland hands down a so-called life sentence, it is made up of a minimum period that the offender must spend in custody before being eligible for parole—the punishment part—and, after that, the possibility of further time, if the Parole Board so decides. The court has no power to mandate that the worst criminals will never get out.

We are told that the Scottish courts already have a power to set a punishment part that is longer than the rest of an offender’s life. That is the case if the criminal happens to be elderly or terminally unwell, but it turns on chance and cannot be designed.

Daniel Johnson also misses the point that judges are bound by case law, which says that the murderer of a child or a police officer should receive a punishment part of only 20 years. That is not a lifetime. The longest punishment part that has ever been handed out by a Scottish court is 37 years, and even that most extreme example is not the rest of someone’s life if they are in their 20s. The incontestable fact is that Scottish courts cannot, by law, guarantee that the worst criminals will not be let back on to our streets.

Before I get the inevitable intervention, I say that it is a persistent myth that whole-life custody sentences are contrary to human rights. That is not true. In January 2017, the European Court of Human Rights ruled that whole-life orders as they exist in England and Wales are not in breach of the European convention on human rights.

Will the member take an intervention?

If it is brief, Mr Findlay.

Why does Mr Kerr not cut to the chase and tell us the reality? What he probably wants is to bring back the death penalty.

I do not thank Mr Findlay for wasting my time with his intervention. Of course I do not think that, Mr Findlay; just sit down.

Some people accept that we do not have whole-life custody sentences, but we should ask why we need them. Why bring in a sentence that would apply only to the worst criminals, and which would give Scottish judges the same powers that judges in England and Wales have? One of the core functions of our justice system is punishment, but the constraints on the length of punishment parts, which I have already set out, do not allow the Scottish courts to discharge that function for the very worst criminal acts.

Punishment is not the only reason that we send people to jail, but neither should it go ignored. The length of time for which society removes someone’s liberty must measure up to the appalling consequences of their actions. We must also think about the public and victims’ experiences. Too many people who have never had that experience—directly or indirectly—ignore the strength of public feeling on the issue and elevate their concerns for the offender. To them, I simply say: Linda McDonald, the family of Paige Docherty and others are completely right to demand that life means life.

I will address the public safety point. Some offenders commit crimes that are so appalling that the risk of reoffending should be removed altogether. There is a justified public outcry when a violent criminal is released only to reoffend and inflict devastation on yet more lives. Yes, releasing an offender comes with risks, and it is right that society takes that collective risk for most prisoners in the pursuit of rehabilitation. However, for the most despicable offenders, that is a fruitless effort. It is time to protect Scotland’s communities by removing the worst criminals from society for good.

Our proposal for whole-life custody would ensure that those who protect us from danger have the full weight of the justice system behind them. Police officers are among the most selfless people in our communities—they put themselves in harm’s way every day to keep us safe. Prison officers manage difficult and high-risk offenders in an environment that is increasingly plagued by the threat of dangerous substances and weapons. Tragically, some officers’ lives are taken while they are carrying out those duties on our behalf. Those are especially appalling crimes, because they are attacks on not only individuals, but society itself. Those officers can be distinguished from other public servants by the role that they perform and their routine contact with dangerous offenders. Their duties and the risks that they face mean that they stand apart from others. That is why we propose that whole-life custody should be the starting point for the murder of a police or prison officer in the course of their duty.

I have launched a consultation on a member’s bill to enable our judges to give a genuine whole-life sentence for the worst offenders in society. The SNP has an opportunity to demonstrate that it is not a soft touch on criminals. My consultation sets out the facts in a clear plan for how to go about this. The only question left is whether the SNP agrees with the principle that the very worst criminals deserve a lifetime behind bars. It can work with us to make that law, or it can confirm what the public already suspect; whatever it does, the Scottish public will know that a Scottish Conservative Government led by Ruth Davidson will put victims first, punish the crime, and keep Scotland’s communities safe.

I move,

That the Parliament believes that Scotland’s judges should have the power to impose whole life custody sentences.

14:30  

One of the most difficult and important decisions that anyone working in our criminal justice system can face is that which is faced by High Court judges who are tasked with sentencing those who are convicted of the most appalling crimes, such as serial murder, the murder of police officers or others who are tasked with protecting the public, and horrific sexual crimes, which are often committed against our most vulnerable citizens.

It is, of course, vital that the public has confidence in our justice system’s ability to deal effectively with those who are convicted of the most terrible crimes and that judges have the powers that they need to sentence appropriately the most serious offenders that come before the High Court.

The Appeal Court has confirmed that Scottish courts can impose a punishment part that exceeds the rest of an offender’s life. In 2009, in the case of HMA v Boyle, the court stated:

“while the statute does not empower the judge to specify a ‘whole life’ period, in an appropriate case a prisoner in Scotland may be sentenced to a period which in practical terms will extend until his or her death.”

For example, Angus Sinclair, who was convicted of the World’s End murders in 2014, was sentenced to life imprisonment with a punishment part of 37 years. That meant that he would not have been able to apply for parole until he was 106 years old.

There are other examples of people who were convicted of the very worst crimes having been given punishment parts of 30 years or more. Thomas Smith, who was convicted of the murder and sexual abuse of a woman and her 10-year-old daughter, was sentenced in 2010 to a life sentence with a punishment part of 32 years. James McDonald and Raymond Anderson, who were convicted of murder, received life sentences with a punishment part of 30 years.

It is important to remember that the punishment part of a life sentence only sets the minimum period that the convicted person must spend in prison before being able to apply for parole. Whatever the punishment part of their sentence, someone who is given a life sentence will remain in prison for as long as they are considered to be a risk to the public. It is for the independent Parole Board for Scotland to consider whether a prisoner no longer represents a risk to public safety, and it is worth noting that the Parole Board directed the release of only 35 of the 342 life sentence prisoners who were referred to it in 2017-18. Of the 67 prisoners serving an order for lifelong restriction who were considered by the Parole Board in that year, none were directed to be released.

Any life sentence prisoner who is approved for release by the Parole Board is subject to a life licence and continuing supervision in the community. If they breach the terms of that licence, they can be recalled to custody. Therefore, the court already has the power to impose very long punishment parts on people who are convicted of the most serious crimes, and, when a life sentence prisoner has served the punishment part, they can be released only if they are not considered to pose an unacceptable risk to public safety.

For those reasons, I am not persuaded that Liam Kerr’s proposal for whole-life sentences would add to the extensive powers that Scotland’s courts already have to deal with the most serious cases that come before them, and I am not alone in that. On 29 May, Mike Nellis, a professor of criminal and community justice at the University of Strathclyde, was interviewed on “Good Morning Scotland”. He said that Mr Kerr’s proposal is

“exaggerating the importance of ... creating whole-life custody”.

I hope that the Parliament agrees that it is important that we take an evidence-based approach to criminal law reform and prevention and that any changes that we make to the sentencing powers of our courts will make a real difference. We will, of course, carefully consider any proposals for reform of our sentencing law that are put forward, but I am not persuaded that whole-life sentences would make a real and practical difference to the ability of the courts and the justice system to deal with the most serious offenders.

I move amendment S5M-17503.2, in the name of Humza Yousaf, to leave out from “believes that” to end and insert:

“notes that the courts’ powers to deal with the most serious offenders have been strengthened by the introduction of orders for lifelong restriction in 2006 and the reforms to clarify the calculation of the punishment part of discretionary life sentences in the Criminal Cases (Punishment and Review) (Scotland) Act 2012; acknowledges that the Parliament will give appropriate consideration to any further proposals to enhance the courts’ sentencing power, but notes that Scotland’s judges can already impose a punishment part of a life sentence that extends beyond the likely remainder of a prisoner’s life in appropriate cases.”

14:35  

The proposed bill is a meaningless stunt. The Tories argue that it would be another tool in the sentencing box for judges, but, if that is an attempt to make those who do not support the proposal look weak, it is a cynical attempt. Liam Kerr admitted as much when he mentioned that only Ruth Davidson can make justice actually work.

Judges already impose a no-limitation punishment element, and they can extend the punishment beyond the likely remainder of a prisoner’s life, which has happened on numerous occasions. Judges use their discretion on a daily basis. The most notable case was that of Angus Sinclair, who was sentenced to 37 years and who died in jail.

Liam Kerr says that judges will be bound by case law; unless he is mistaken—and I think that he is mistaken—judges would still be bound by case law even if we were to pass a whole-life sentence into law.

The Parole Board for Scotland has a difficult job to do, and it is made up of experienced people. On release, prisoners remain on licence and will be recalled for small offences. A part of the proposal that gives me real cause for concern says:

“However, as long as the Board has the power to release offenders who the public feel should never leave prison, our system cannot ensure proper punishment or public safety.”

Perhaps, when summing up, the Tories will explain what they mean by that. Either they believe in a criminal justice system in which judges make decisions or they believe that the public should make those decisions. It is incompatible with their sentiment that the Parole Board for Scotland is doing a good job. As the minister has said, an order for a lifelong restriction is another sentence that is open to judges. I do not think that the Tories have real trust in the Parole Board.

I do not doubt that Pauline McNeill’s point will be picked up in the closing speeches. We are not compromising the independence of the judiciary at all—not one bit. The point about Angus Sinclair, which the minister refused to take, is that he was 69 at the time. The fact that he died behind bars was an accident—it did not happen by design. Our criminal justice system should simply not countenance that approach.

I will deal with the member’s point when I outline what I think would be the right way forward for guidelines and sentencing.

The proposed bill also states that, if a trial judge hands down a sentence that is

“deliberately long, with a view to outlasting a criminal’s natural life, that sentence is liable to be overturned”.

A sentence is just as likely to be overturned if we pass this proposal into law. All decisions by judges face being overturned in an appeal court.

With regard to Liam Kerr’s point about the European Court of Human Rights, my understanding is that the European convention on human rights says that we cannot have whole-life sentences—at least, not without a periodic review of prisoners who are in that situation. Who decides what are the most serious murders and sexual offences? Judges decide that every single day of their lives. It is not clear to me, in the proposal, whether further guidelines are going to be given to judges on what would be regarded as such offences. Perhaps that could be clarified. [Interruption.] Liam Kerr says that it would be the murder of police officers, but he needs to make that clear.

The only element of the proposed bill that tempts me to further investigate the need for an improvement to sentencing guidelines for murder is the statistic that, according to the Parole Board for Scotland, 70 per cent of lifers serve a 14-year sentence. I admit that that gives me cause for concern, but it suggests to me that a simple review of the guidelines would be sufficient to rectify any perceived leniency. Sentences are going up, not down, despite a drive for short-term sentencing. Figures that were released today show that the number of serious assaults is coming down but that the length of sentences is going up. However, the proposed bill will raise the public expectation that the wholesale application of whole-life sentences will solve the problem, and I do not believe that it will.

Introducing the concept of whole-life prison sentences would have implications for the management of prisons. I hope that Liam Kerr will attempt to draw out such implications in the consultation period. People who believe in whole-life sentences must believe that there is no possibility for the rehabilitation of prisoners, so consideration must be given to how a prison system would be run if it contained a number of offenders who would never be released from jail. Consideration must be given to safety inside prisons as well as to the safety of the public outside.

Scottish Labour fully understands the need for constant review of the criminal justice system—as we say in our amendment, which was written before we saw the Government’s amendment—including the sentencing powers of the judiciary. The safety of the public is paramount, and the criminal justice system must punish offenders severely—in some cases, a life sentence should, in effect, mean life—but judges already have the option of giving such a sentence. The way forward is to review sentencing guidelines and await the outcome of the Scottish Law Commission’s review of the definition of murder.

I move amendment S5M-17503.1, to leave out from “Scotland’s” to end and insert:

“the sentencing options available to the courts, including in relation to the most serious offenders, should be kept under review, and further believes that any changes to sentencing powers must follow an evidence-led debate about what is in the public interest, and full consultation with all relevant parties, including the Scottish Courts and Tribunals Service, Scottish Prison Service, Parole Board for Scotland and wider public.”

I call John Finnie to open for the Green Party.

14:41  

Liam Kerr was with me at this morning’s Justice Committee meeting, in which we discussed the presumption against short sentences. The committee is deliberating on the matter, and one of the most compelling contributions was from Professor Tata, who said that, if we are to have a presumption against short sentences—my party and I certainly support that—we need to think about the longer-term and wider implications of such a policy, such as the demands on the prison estate.

This morning, we heard some compelling evidence, which I will repeat. I am sure that Liam Kerr will acknowledge that these comments were made. Colin McConnell, the chief executive of the Scottish Prison Service, said that prison is about deterrence, rehabilitation and punishment. I do not know whether he said those things in a particular order, but rehabilitation is important. James Maybee, who was representing Social Work Scotland, recognised some of the challenges that might be associated with a presumption against short sentences. There are always such challenges, and Liam Kerr had the good grace to acknowledge that point—indeed, I agree with what he said about it being right for society to take a “collective risk”. If we are risk averse, we will bring about a situation similar to that which has happened with home detention curfews, where we have seen a plummeting of the use of one of the facilities.

Liam Kerr always says that there needs to be an evidence base, and I commend him for taking that approach to his duties. The Labour amendment mentions that point, too. Let us take evidenced decisions. James Maybee talked about assessing risk and need. We also heard from Dr Katrina Morrison, from Howard League Scotland, who said that we need a conversation about what punishment is and what it is not.

I fear, however, that Mr Kerr’s proposal is pandering to a certain audience. I align myself with the comments of my colleague Pauline McNeill, who said that the proposal is a stunt. It is very unhelpful and is completely out of kilter with the direction of travel that the criminal justice system is taking.

To answer those points, I can tell John Finnie that the proposal is not a stunt, because I have been working on it for the guts of the past two years. A stunt is not something that someone pulls out after two years of very difficult work.

Of course, I acknowledge the work that goes into a member’s bill. Again, Liam Kerr had the good grace to say that someone being sentenced for 37 years has been the most extreme example, but I happen to think that confining someone in a room for 37 years is an extreme measure. If we confine people for that length of time, we should take every opportunity to ensure that they do not repeat the conduct that put them in prison in the first place. We need to have that conversation, and not just in relation to the proposal that we are discussing.

Is it Mr Finnie’s view that the vast prison population will always be subject to rehabilitation and will never present a danger to the public? We are targeting that very small number of people who cannot be rehabilitated for whatever reason—perhaps they do not have empathy—who do not respect the values of others in society and who will always pose a danger.

Mrs Mitchell identifies a group of individuals—fortunately, it is a small group—for whom provisions are already in place: they are unlikely to be given parole and are likely to be subject to lifelong restriction provisions.

Another point that Mr Kerr will have picked up from this morning’s meeting of the Justice Committee came from Dr Sarah Armstrong, from the Scottish centre for crime and justice research, who said that Scotland’s prison population, which is the largest in Europe, is akin to those of Texas and Louisiana. We should not take Texas and Louisiana as models of a criminal justice approach at all. We should not be proud of following those examples as we try to make progress.

There is an opportunity to take a different approach. I noted that Dr Hannah Graham said that

“punitive populism is the wrong direction for Scottish justice”

and I agree with that.

I am sure that Mr Kerr will tell us that he is not politicising sentencing, but I lost track of the number of times that he said “SNP” in his speech. It is about making an evidenced case. It is such an important issue. We cannot have a situation where the significant work that already takes place in respect of risk management and the work of the Parole Board to keep the public safe is undermined by the creation of unwarranted fears. Mr Kerr shakes his head, but that is exactly what he is doing. There is ample evidence—the minister cited many examples—that robust sentencing can take place.

I lodged an amendment commending the continuing role for rehabilitation. We know that for some people who find themselves involved in the criminal justice system, such as those with addiction, there is a clear opportunity to get them sorted. Fundamentally, the criminal justice system should be about prevention: the main role of the police should be to prevent crime and protect life and property. I commend the violence reduction unit’s role and its holistic approach. The proposed bill is way out of kilter with any of that, which is very unfortunate.

It is important that we have lively debates. When we talk in the Justice Committee, Mr Kerr always wants evidence-led debates, and, in this case, the evidence would not lead him to the conclusion that he has reached.

I call Liam McArthur to open for the Liberal Democrats.

14:47  

Even after Liam Kerr’s performance this afternoon, I firmly believe that, when it comes to justice, his instincts are broadly liberal. I see him more in the mould of his colleague, Rory Stewart, than a latter-day Michael Howard; far less a ready-made solution to plugging the Anne Widdicombe-shaped hole in the Tory Party.

I say that despite much of the poorly-evidenced nonsense stuck out in his name denouncing “soft-touch justice” and alleging that Scotland’s prisons are being emptied—at a time when, as we heard again this morning, our prison population stands at 8,242 and rising and when the UK has more people under penal measures than any other country in Europe save Russia and Turkey. How Liam Kerr squares all that with what appears to be a genuine concern for restorative justice and demands for ministers to better resource diversionary and rehabilitation programmes is not at all clear.

Like others, the Scottish Liberal Democrats will consider the detail of the member’s bill that Mr Kerr has promised to introduce. However, today’s debate and the rhetoric surrounding it bear all the hallmarks of political posturing, rather than a serious attempt to reform sentencing to better meet the needs of victims and their families, those in our prison system and communities across Scotland. In playing to the gallery, Mr Kerr either chooses to ignore or is unaware of the options already available to judges.

I do not recognise Mr McArthur’s characterisation. The motion, which I have made very short and to the point, is clear: Scotland’s judges should have the power to impose whole-life custody sentences. It is a simple motion. Do the Liberal Democrats agree with it or not?

As I have made abundantly clear, I do not agree.

In sentencing, a judge will set a punishment part, which is the minimum term that must be spent in prison. After that time, a person can be considered for release by the Parole Board. That decision is based on an assessment of risk, which should be explained. Even if a person who has been given a life sentence is released into the community, they will be on licence for the rest of their life and can be recalled to prison in the event of a breach.

Under those provisions, World’s End murderer Angus Sinclair was given a sentence that would have prevented him from even seeking parole until he was 106, as we heard. As Lord Matthews explained—with little room for ambiguity, let me say to Mr Kerr—that was intended to “make matters easier for” the Parole Board.

Let us not forget that, under the terms of the European convention on human rights, prisoners need to be sentenced in a way that allows them a realistic prospect of release, even if, for reasons to do with on-going risk, that release does not happen.

The same approach applies south of the border. In England, whole-life orders are compatible with the ECHR only because the justice secretary has a statutory duty to review such cases and to exercise the power of release for life prisoners in such a way as to ensure compatibility with the convention. Moreover, the secretary of state’s decisions on possible release are subject to review by the domestic courts, which are also bound to act within convention rights:

“the High Court would have the power to directly order the release of the prisoner, if it considered this to be necessary in order to comply with Article 3”.

However much Liam Kerr wishes to portray the approach as lock-’em-up-and-throw-away-the-key justice, the facts say otherwise.

Of course, some individuals who are guilty of the most serious, violent crimes and who continue to present an unacceptable risk to their victims and/or the wider public, will need to remain in prison.

Will the member take an intervention?

No, thank you.

We also need to keep under review the sentencing options that are available to our courts, although the process for doing so is the one that is set out in Pauline McNeill’s amendment, rather than the dog-whistle, grandstanding approach of Liam Kerr.

As Fergus McNeill, professor of criminology at the University Glasgow, points out:

“Legislating for whole life tariffs is regressive and un-necessary. It also communicates a troubling message about giving up on the possibility of human development, turning imprisonment into warehousing.”

Jamie Buchan, lecturer in criminology at Edinburgh Napier University, adds that the likely longer-term effect of introducing the measure would be that

“either judges don’t use it in which case it’s been a waste of time, or the definition of ‘most serious’ creeps outward to encompass more & more cases”,

as we are seeing in England and Wales.

Neither outcome represents progress or would lead to a more effective justice system. I support the amendment in the minister’s name.

We move to the open debate.

14:52  

I will give the Conservative motion the benefit of the doubt and say that it is probably well intentioned. Liam Kerr’s proposal reflects the anguish that victims and their families go through after experiencing the worst of crimes, as he vividly described. It would allow Scottish courts to impose a whole-life sentence for the most serious offenders, which would see them remain in custody for the rest of their lives, with no possibility of parole.

However, it is not clear what Liam Kerr’s proposal would add to the existing, extensive powers that Scotland’s courts have. Courts already have the power to impose the equivalent of a whole-life sentence in the most serious cases, if they see fit to do so. A court can impose an order for lifelong restriction, depending on the risk.

As we know, in Scotland, a life sentence must be given for murder and can be imposed for other extremely serious offences, such as repeated rape. If a person is sentenced to life imprisonment, the judge must, by law, set a punishment part of the sentence. That period can extend beyond the remainder of a prisoner’s life, which means that an offender can never be considered for parole. That is, in effect, a whole-life sentence.

I am afraid that the member is completely missing the point about my proposition. At the moment, judges cannot set a whole-life sentence. They can do so in England and Wales, but they cannot do so in Scotland, as the member has just conceded. Will she at least concede that point?

Will the member concede that judges have the power to do exactly that, in a different way? They can impose an order for lifelong restriction.

If a person who was sentenced to life imprisonment under an order for lifelong restriction is released into the community, they will be on licence and can be recalled to prison if they breach the terms of their licence.

It is right that the courts have far-reaching powers to deal with the worst offenders, and it is right that sentencing in any given case is a matter for the courts. Every case must be considered on its own, and a blanket policy would not work.

Criminal law experts are sceptical about Mr Kerr’s proposal. Hannah Graham, who is a criminologist and senior lecturer at the University of Stirling, objects strongly to the proposal and says:

“this type of punitive populism is the wrong direction for Scottish justice.”

I agree with her.

Sentencing policy must not be based on the extremely tragic but thankfully rare cases that hit the headlines. Each case must be considered individually, and if we adopt a lock-’em-up-and-throw-away-the-key attitude, it brings into question the meaning of our entire justice system and the purpose and practice of rehabilitation.

The SNP has always been clear that prison is the right place for the most serious and dangerous offenders. Life sentence prisoners will remain in prison for as long as they are considered a risk to the public, and it is for the independent Parole Board to consider whether a prisoner no longer presents a risk to public safety. Any life sentence prisoner approved by the board for release is subject to a life licence and continuing supervision in the community.

The judiciary is not calling for more powers to impose whole-life sentences, because it already has them. The Sentencing Council has confirmed that no issues or concerns in relation to the law on the sentencing of serious offenders have been raised with it. As the minister said, the Scottish Government will consider the detail of a draft bill, once it is available, to understand its purpose and effect.

I will conclude on an optimistic note. Recorded crime is down 42 per cent—a record low—and people feel safer in their communities. The vast majority of people in Scotland—87.5 per cent—experience no crime; in the East Dunbartonshire Council area, which is partly in my constituency, crime is down by 44 per cent. In 2017-18, only 2.3 per cent of adults were victims of violent crime, which of course does not diminish the trauma that those adults suffered. Under the SNP, those who commit the most serious crimes are receiving longer sentences and spending longer in prison before release. As I said at the start, although the motion and the proposed bill may be well intentioned, I do not believe that it is necessary for our justice system to go down that path, when the powers being called for already exist.

14:56  

I welcome the debate and thank my colleague Liam Kerr for his proposal. The idea of whole-life custody may seem too harsh a prospect for some, but the proposed bill neither represents an unfounded vindictiveness nor suggests an overbearing constraint on Scotland’s judges. Instead, it puts forward a reasonable, already tried-and-tested proposal. We currently have a system that allows the most violent perpetrators to evade the punishment that they deserve. When we look closely at that system, it seems that justice often slips through the cracks. Surely, there is an argument that the most serious crimes should be met with the most serious punishment—life imprisonment.

We have to be clear: a whole-life custody sentence would be the starting point when sentencing an individual who has been found guilty of specific crimes, and it would be used solely in those cases where there is sufficient justification to do so. With whole-life sentences only for the most serious crimes, the proposed bill would set a benchmark against which a judge could consider factors that may reduce the length of a sentence. That would ensure that we see more sentencing that accurately fits the crime, while removing a constraint on the agency of Scotland’s judges.

Of course, for the majority of prisoners, rehabilitation is the right course of action. When there is a chance for a perpetrator of a low-level crime to turn their life around and reintegrate well into society, that should be supported. Sadly, though, we cannot deny that, in some cases, perpetrators have shown, through horrendous crimes, that they can genuinely never be rehabilitated. In those circumstances, the seriousness of their crime should not be ignored. Victims and their local communities deserve that much. When there is a high risk of reoffending with the worst crimes imaginable, a whole-life custody sentence is the safest route.

The proposed bill is a sure way to put victims in Scotland first. For those who have experienced the worst crimes, the proposal would protect their safety as well as their mental health. Not one of us here would want victims to be retraumatised by the dread of knowing that the perpetrator could be granted early release in a matter of years. The bill would give those victims a much-longed-for feeling of security with the knowledge that the perpetrator would not enjoy a freedom that their crime certainly did not call for.

Linked with that, the bill would significantly reduce the likelihood of potential future victims. Is it not in everyone’s best interests, therefore, that we, as parliamentarians, limit in our law the chances of that happening? We can see that the proposal is workable. For instance, England and Wales have the option of dispensing whole-life orders. Such orders are reserved for only the most exceptionally serious crimes, which is as it should be, and they are used only in cases where the perpetrator is over 21.

Of course, we recognise that those whole-life orders are not handed out generously and are imposed only for certain especially grievous crimes as a starting point for further deliberation. In that connection, they respect the European convention on human rights, and our equivalent would do the same.

We must prize the safety of our communities—that is paramount. Under whole-life custody sentencing, there would be less chance of reoffending, so our local streets and homes would be made safer. Currently, a prisoner who is released on so-called life licence is supervised by criminal justice social workers for the remainder of their life, but the varying effectiveness and scrutiny of that supervision can be called into question.

Similarly, orders for lifelong restriction—even though they stipulate that more risk assessment requirements must be met—cannot guarantee that the prisoner will not be released at some point in the future. Even in the past five years, two prisoners under lifelong restriction orders have been released. It is safe to say that, in cases involving the most serious crimes, those measures are incapable of going far enough.

I know that we are all united in the belief that public confidence in Scotland’s justice system is important. The ability to rely on our sentencing process is critical for enabling trust, but that public confidence is knocked each time a released perpetrator reoffends.

Come to a close, please.

The fact that only 38 per cent of Scottish people believe that sentencing currently fits the crime shows their disillusionment in abundance.

I hope that Liam Kerr’s proposed member’s bill will not be swept under the carpet. It proposes a sensible and justifiable change that would give some much-needed security to not only victims and their communities, but the justice system that serves them.

15:01  

Sentencing is a hugely emotive issue. For victims, it can mean justice. For families, it can allow for closure. For politicians, it is an area into which we rarely stray—as Mr Kerr knows, that is because of the independence of the judiciary. However, that is not to say that we should not hold opinions on sentencing. Perhaps the chief executive of the Scottish Prison Service put it best when he told the Justice Committee this morning:

“It is right that sheriffs are left unfettered but have guidance”.

I am sure that we have all had constituency cases in which the justice system has let down victims and witnesses of crime. On that, I hope that Mr Kerr welcomes the cabinet secretary’s establishment of the victims task force, which is a direct response to the need to make the justice system more victim centred. Yesterday, I was pleased to meet Victim Support in Glenrothes to discuss its vital work across communities in Fife and in our courts.

Of course, there is still a role for our prisons in Scotland’s justice system in 2019, but we should be careful not to focus our attention solely on life sentences, as the motion invites us to do. Eighty per cent of all jail terms that were imposed in 2017-18 were for less than 12 months. Indeed, Scotland’s imprisonment rate remains one of the highest in western Europe. As Professor Cyrus Tata told the Justice Committee this morning:

“Prison never has to prove itself; everything else has to prove itself.”

Therefore, I am disappointed not to see any mention in Mr Kerr’s motion of the causes of crime: poverty, inequality, poor educational opportunities, geography, and social class. In fact, I still have a few modern studies lessons on that very topic if Mr Kerr should wish to expand his horizons. To focus exclusively on the end result of the criminal justice system through sentencing is to ignore the bigger picture.

If Mr Kerr does not like to hear it from the SNP, maybe he should listen to the Conservative Secretary of State for Justice and Lord Chancellor David Gauke MP, who stated just four months ago:

“we should be extremely cautious about continuing to increase sentences as a routine response to concerns over crime. We have to recognise that such an approach would lead us to becoming even more of an international and historical outlier in terms of our prison population.”

Alternatively, Mr Kerr might care to listen to the other Liam on the Justice Committee. In December last year, Liam McArthur said:

“We know that 60 per cent of people”—

On a point of order, Presiding Officer. I apologise to the member for making a point of order, but my motion is very specific and so is the SNP amendment. The member is not addressing either the SNP amendment or my motion.

Mr Kerr, that is for me to decide.

This morning, the Justice Committee was looking at the approach to short-term sentences, on which the Government has brought forward proposals. The Howard League Scotland told us:

“Despite the recommendations of the Scottish Prisons Commission over a decade ago, we still rely on imprisonment to do too much, with too many—and have done so for too long.”

Dr Sarah Armstrong told us—John Finnie mentioned this—that, if Scotland were an American state, we would be on a par with Texas or Louisiana in respect of our imprisonment rate. Laura Hoskins told us that sending people to prisons for short periods is creating social problems. Professor Cyrus Tata told us that prisons are still used in 2019 as a form of penal welfare.

The Conservative motion is solely and narrowly focused on life sentences. However, as we have heard, judges and sheriffs already have the power to impose a lifelong restriction order. Indeed, of the 67 prisoners in Scotland with a lifelong restriction order, none was directed as due to be released.

If judges see fit, they can sentence quite deliberately according to the age of the accused. Members will be aware that that happened in the case of Angus Sinclair, as we have heard.

Our problem in Scotland’s prisons is not that we are a soft touch on sentencing; it is the other extreme. We are locking up far more people than ever before. To what end? We want to move to a country that, as set out in the Scottish Government’s aspirations, is

“a modern and progressive nation in which imprisonment is used less frequently”.

Part of the solution is a presumption against short sentences, and part of it is about ensuring that a greater range of alternatives is readily available and that those alternatives have been risk assessed accordingly. However, a huge part of the solution is a cultural shift in how we deal with punishment in Scotland. That is exactly what the Justice Committee heard in evidence this morning. What a pity that Liam Kerr is more interested in headline hunting.

15:06  

I will strike what is maybe a slightly incongruous note following previous speakers. I genuinely welcome the debate, not because I agree with the motion but because I completely disagree with it. The Conservatives are wrong in fact and in law and, above all else, they are wrong about the impact that the debate will have. However, I welcome the debate, as it gives us an opportunity to discuss the undoubtedly hugely important issue of prison.

Prison is the default option in our justice system, but it is simply a Victorian inheritance, and it is flawed. It does not work. Surely, after all this time, our recidivism rates should teach us that something is not right with the way that our prison system works and that that needs to be put right.

Above all else, there can be no room for complacency in Scotland, because the Scottish record on incarceration is appalling. We have an incarceration rate that is among the highest in the world. As other members have mentioned, we are on a par with Texas and Louisiana. Our incarceration rate is ahead of that of England and Wales. That should give us pause for thought.

Let me give Liam Kerr the benefit of the doubt because, in my time working on the justice brief, I have always found him to be thoughtful and wanting to engage with both evidence and principles. In a sense, it is a shame that it has taken an Opposition debate for us to be able to talk about incarceration and its principles. This is a debate that should be happening in Government time—although perhaps not necessarily on the letter of the motion. If the Government is serious about reforming the prison system and the justice system, we should be discussing the role of prison and the alternatives to it in the Government’s time, not in Opposition time. The Conservative Opposition has lodged a motion on prison sentencing, and one of our recent motions was on the Scottish Sentencing Council. It is time for the Government to use its time in the chamber properly.

Let me deal with the Tories’ motion. The Tories are wrong in fact. As other members have pointed out, the reality is that it is possible to keep people in prison when they pose such a risk. The judge might not be able to absolutely determine that at the point of sentencing, but an order for lifelong restriction of liberty absolutely makes that eventuality possible.

Will the member take an intervention?

I do not have very much time.

I can give you the time.

The Parole Board for Scotland likewise has a responsibility and a duty to ensure that people pose no further risk.

The Tories are also wrong in law. Although whole-life sentences may have that name in England, the reality is that there is no such thing as a whole-life sentence because, in 2012, the European Court of Human Rights determined that there has to be the realistic prospect of rehabilitation. The reality is that the Secretary of State for Justice has to review those cases and give people the possibility of being released. There is no such thing as a whole-life sentence; that is bogus.

That is where the final part of where the Conservatives are wrong comes in. They are wrong in fact and in law, and the effect of that is appalling. In a sense, they are creating a straw man to whip up sentiment. Fundamentally, they are misrepresenting the situation in Scotland. If people remain a danger and a risk to society, they will stay in prison; it is as simple as that.

Will the member take an intervention?

No, I have no time.

If you wish to take the intervention, Mr Johnson, I can give you time.

Thank you, Presiding Officer. Does Daniel Johnson know that more than 70 per cent of supposed life prisoners who have been released since 1971 spent fewer than 15 years in prison?

Liam Kerr has a problem with the terminology, and I agree with him that we need greater transparency in sentencing. However, the Conservatives have not made the case for the fundamental point: why is life—an arbitrary sentence—necessary, rather than a risk-based assessment of the individual? They have fundamentally misrepresented the situation.

It is a simple bit of parliamentary timetabling. Mr Kerr knows that he has no realistic possibility of his proposed bill being passed. I started the process for my bill in the first year of the session, and I have not yet introduced the final draft. Liam Kerr knows that his proposed bill is nothing more than parliamentary grandstanding, and that is why it is so irresponsible.

Ultimately, it comes down to this: if our incarceration system is to have any validity, there must be hope—a pathway to release. Justice must give people the possibility of repentance, reform and rehabilitation. If it does not have those components, it is nothing more than a blunt and barbarous system that has no justification.

15:11  

I find today’s motion to be quite shameful. Using the most tragic situations, which should unite all of us in the chamber, for an attempt at political gain is not good politics. The thought that any of us here do not have empathy for the families that Liam Kerr mentioned is absolutely disgusting. Mr Kerr knows that I have learned to respect him in committee, and I cannot believe that he is leading on the motion. Perhaps that exchange with our other committee colleague, Daniel Johnson, is an example of the exchange that happens off the record. During his opening speech, Liam Kerr gave away who he hopes will form the next Government. Was there an election a couple of weeks ago, in which the result did not quite go the Tories’ way? That is what it looks like to me.

At its heart, what Mr Kerr proposes is a step backwards for what is an increasingly progressive country. As a member of the Justice Committee, I fail to see how imposing whole-life custody sentences would benefit the already extensive powers of the Scottish courts, as others have also said. I do not believe that judicial discretion in Scotland is currently limited by mandatory sentences. The Tories should know, as Maurice Corry clearly does, that a life sentence prisoner who is approved for release is subject to a life licence.

The proposal also fails to grasp that Scotland’s judges already have the power to impose a sentence that exceeds the likely remainder of a prisoner’s life, depending on the severity of the crimes committed—a point that has been well made countless times today. That is, in effect, a whole-life sentence. It has been confirmed by the Sheriff Appeal Court and the Scottish Sentencing Council that the long-standing powers of the Scottish courts to sentence murderers and the most serious offenders remain in place, and the independent Parole Board appropriately assesses the risk of the individual to the public.

The real outcomes for serious offenders under the current legislation are that only 10 per cent of life sentence prisoners who were referred to the Parole Board last year were released, and of those, as the minister said earlier, none was under an order for lifelong restriction. The reality is that people who pose a serious risk to society will remain in prison indefinitely, so I do not think that anyone can say that the SNP Government or any other party in this chamber—Labour, Greens or Lib Dems—is engaged in soft justice for serious offending.

Will the member take an intervention?

I do not have time.

In the past 10 years, serious crimes across Scotland have declined by 42 per cent, as Rona Mackay pointed out, which validates the considerable progress made by the Scottish Government in tackling serious crime where we should tackle it—through early intervention. The motion is nothing but a political stunt by the Tory party.

We need to look at rehabilitation as a whole. John Finnie, Jenny Gilruth and others have already made the point that, in committee earlier today, we sat with Liam Kerr and heard evidence on the presumption against short-term sentences and how that impacts on the system. There is debate around how much impact it will have. There was general agreement among most people, but where do the Tories sit on it? They are the only folk who are against it. What a surprise. They are not into rehabilitation. They want to play the card that suggests that members are supporting a soft-touch agenda. It is completely and utterly a political stunt.

Presiding Officer, as you—and probably the rest of the chamber—can tell, I am pretty disappointed in the motion. I am disappointed that Liam Kerr has lodged it. I think that he has misjudged the mood of the chamber and the country on the matter, and at voting time, I hope that the chamber realises what the motion is—a shameful political stunt, with which half of the members on the Tory benches probably do not even agree, that follows the European Union election results of a couple of weeks ago.

15:15  

I speak in support of Liam Kerr’s members’ bill proposal. I am a qualified advocate who has dealt with these sorts of cases on both sides of the court room, and it appears to me that a move towards ensuring that whole-life custody sentences can be handed down by Scottish judges could be part of a positive way to restore confidence in our justice system.

As the consultation on the proposed bill continues, the question that will probably be raised, time and again, is: why is that not the case already?

I respect Gordon Lindhurst, particularly with respect to the hinterland that he has in this area. When he was that advocate, was he making the case for whole-life sentences and a bill of this kind?

When I was an advocate, I was acting in the courts in either prosecution or defence, and I was not involved in the political process in this chamber as I am now. I am sure that that the member will agree that we always have to look at revising and improving the law, and at addressing gaps in it. The proposed bill would do that.

Will the member take an intervention?

I will not at this point. I need to make some progress.

In the media, we regularly read and hear of life sentences being handed down for the worst criminals, but we have seen some criminals being released after serving as little as 14 years. How is that justice for the victim’s family? Over 70 per cent of lifers have been released after less than 15 years in prison, and more than 800 of those who have been sentenced to life since 1971 have been released within 14 years.

The Scottish crime and justice survey of 2017-18 highlights the low public confidence in the justice system and its ability to ensure that the punishment fits the crime. Only 38 per cent of adults were confident that the system does that.

The option of whole-life custodial sentences is not a solution to fix every problem, but it can be a start to restoring confidence. Protecting our communities should be at the forefront of everyone’s minds across this chamber. Unfortunately, too often, we hear of criminals who have been behind bars who reoffend on release and bring more misery to communities and families. Keeping the worst offenders off our streets is part of the solution to the issue of public safety.

The bill would send a powerful message—

I accept that, while the member was operating as an advocate, he would not have been able to take an individual position, but the Parliament is lobbied by the Faculty of Advocates on issues. What is the Faculty of Advocate’s position on Mr Kerr’s proposal?

Mr Finnie will presumably refer to the faculty’s position when he speaks on the matter again. I am not here speaking on behalf of the Faculty of Advocates, but on the specific bill and the proposal by my colleague that I am supporting. I think that Mr Finnie would also accept that he does not always accept the faculty’s or the Law Society’s position on any specific issue.

He is not an advocate. You are.

Excuse me. We have had enough shouting across the chamber. Please carry on, Mr Lindhurst.

I could go into the faculty’s position in detail, but I do not have time to do so, so I will conclude by saying that a message must be sent that the worst criminals will not be released back into society, and that, for the most heinous crimes, we will guarantee that the punishment really can fit the crime. The person who knows that detail is the trial judge—the one who passes the sentence. That is what the bill seeks to provide.

15:19  

Presiding Officer,

“this type of punitive populism is the wrong direction for Scottish justice.”

Those are the words of Hannah Graham, who is a criminologist and senior law lecturer at Stirling university, and they have been shared many times this afternoon. I have to say that I agree with them.

It is not at all clear, even after all the speeches, what the Tory proposal would add to the extensive powers that Scotland’s courts already have. The courts can already decide to impose the equivalent of a whole-life sentence in the most serious cases, as minister Ash Denham set out in her opening speech.

Currently, life sentences must be given for murder, but they can also be given for extremely serious offences such as repeated rape. If someone is sentenced to life imprisonment, the judge must, by law, set the punishment part of the sentence. That can extend beyond the likely remainder of a prisoner’s life, which means that an offender can never be considered for parole. That, in effect, is a whole-life sentence.

Life sentence prisoners will remain in prison for as long as they are considered to be a risk to the public. Rehabilitation is important, and sending a message that there is never any hope of release is regressive and unnecessary. Sentencing is a matter for the judiciary—

Does the member believe that someone convicted of murdering a police officer should be released from prison—yes or no?

I believe that such decisions should be based on the evidence and the risk to the public.

Sentencing is a matter for the judiciary, and my understanding is that there have been no calls from the judiciary at any time in the recent past suggesting that they lack the necessary sentencing powers to deal with the most serious offenders.

The European Court of Human Rights says that it is up to states to decide how to punish people for committing crimes, provided that they do not do so in a way that violates human rights. That means that states can impose whole-life sentences. However, sentences have to be reducible in order to be compatible with human rights. In other words, people who are given whole-life sentences have to be given a meaningful chance of a review of their detention to ensure that there continues to be a justification for that detention.

Does the member recognise that some crimes are so appalling that there should never be any option of release at all?

I recognise that, in justice, we have to deal with things case by case, based on the evidence and on the risk to the public; I also recognise that what the Tories are doing is a cheap political stunt, and it is disgusting.

The state can impose whole-life sentences. Life prisoners have to remain in prison for as long as they are considered to be a risk to the public. Having the chance of review means that life sentences do not constitute a form of inhuman or degrading punishment.

Freedom from inhuman or degrading punishment is a human right under article 3 of the European convention on human rights, and the possibility of review is important to ensure that we do not have a situation in which states are free to lock people up and throw away the key. That would be unacceptable.

I said at the beginning of my remarks that it was not clear what the Tory proposal would add to the existing extensive powers of Scotland’s courts. Listening to the speeches today will have done little to reassure people that this is anything more than headline grabbing from the Tories.

15:23  

The suggestion from Liam Kerr in his proposal for a member’s bill and from the Tories in their motion today is that we change the law in order to introduce whole-life sentences.

It is clear to me, having listened to the speeches from across the chamber, that everyone agrees that anyone who has committed a serious crime and continues to be a threat to public safety should be retained in prison. The debate has centred around whether the current law allows that to happen. From the contributions that we have had, it is quite clear that it does, because judges have the power to set a life sentence and, as part of that, to set a minimum term. As Ash Denham pointed out in relation to the case of Angus Sinclair, that allows a position to be set so that the person will spend the rest of their life behind bars if the courts feel that that is justified.

Even if the term runs its course, any release has to be authorised by the Parole Board for Scotland. I have not heard any member question the authority and expertise of the Parole Board, so it seems to me that the Parliament has confidence in it to make judgments in those cases. In addition, there is the ability to bring into effect orders for lifelong restriction, which can be used to continue to retain prisoners behind bars if they are a threat to public safety. The debate has shown that, as Daniel Johnson said, the Conservatives are wrong in fact and in law.

We should always continue to review sentencing guidelines, and we need a constructive debate on that. That debate must be evidence led and take account of the views of the Parole Board, the Scottish Prison Service and various groups that feed into justice policy. We need to consider Pauline McNeill’s point that, although we have a presumption against short sentences, the reality is that the time that is spent in prison is going up. We need a greater understanding of that. Some of the causes were explained by Jenny Gilruth. Anyone who is close to their community and who sees poverty going up and, to be frank, the effect of Tory policies such as universal credit will know that those issues can result in people moving towards a life of crime. We need to understand that and have a proper debate about it. We also need to consider why rehabilitation is not working properly, given that the time spent in prison is going up.

I agree with those who say that the proposal that the Conservatives and Mr Kerr have put forward this afternoon is headline grabbing. We need a constructive debate on all justice issues, but the proposal does not help with that. Therefore, the Labour Party will oppose the Conservative motion and support the Government’s amendment.

15:27  

This has been a useful debate that has highlighted the importance of ensuring that our sentencing law provides our courts with the powers to sentence offenders appropriately while meeting the three objectives of deterrence, retribution and rehabilitation. We have heard informative speeches from Jenny Gilruth and Fulton MacGregor, and quite a consensus has emerged among all the parties in the chamber except the Conservatives.

Members have expressed concerns about sentences that have been imposed in individual cases. I trust that those members will understand that, as a Government minister, it would not be appropriate for me to comment on our courts’ individual sentencing decisions. I accept that people, especially victims of crime and their friends and families, will have strong views on individual sentencing decisions, especially in the most serious cases that come before our courts. I consider that such decisions are best made by an independent judiciary, taking account of all the facts and circumstances of each case.

However, in looking at the bigger picture it is worth noting—this is an important context for the debate—that operational data from the Scottish Courts and Tribunals Service shows that the average minimum tariff for life prisoners has increased significantly, from less than 14 years in 2007-08 to more than 17 years in 2017-18. That has occurred at a time when we have been making real progress in tackling crime. “Scottish Crime and Justice Survey 2017-2018: main findings”, which was published in March 2019, shows that crime fell by 42 per cent since 2008-09 and by 16 per cent since 2016-17, to the lowest level ever estimated. The proportion of adults experiencing crime fell from 20.4 per cent in 2008-09 to 12.5 per cent in 2017-18, compared to an equivalent victimisation rate in England and Wales in that year of 14.4 per cent.

Research on non-sexual violent crime in Scotland was published this morning. It found that there being fewer cases of violence between males in the west of Scotland, which often involve relatively young people—those up to the age of 29—and use of weapons, has driven the 35 per cent reduction since 2008-09 in attempted murder and serious assault cases.

As I said earlier, the Scottish Government is open to considering suggestions as to how the sentencing powers of our courts might be improved. In 2015, the Scottish Sentencing Council was established with the aims of promoting consistency in sentencing, assisting the development of sentencing policy and promoting greater awareness and understanding of sentencing.

When the issue of whole-life sentences was first raised in Parliament by the Public Petitions Committee, and by Ruth Davidson MSP at First Minister’s question time, my predecessor wrote to Lady Dorrian, who is the chair of the Scottish Sentencing Council. He highlighted concerns that parliamentarians had expressed about the consistency and comparability of sentencing in murder cases, and about whether the judiciary had the necessary powers to deal with the most serious cases. He asked also whether the Scottish Sentencing Council was aware of any issues or concerns having been raised about operation of the existing law with reference to mandatory life sentences, following convictions for murder. Lady Dorrian noted that consideration of the introduction of whole-life sentences was a policy matter for Parliament, and she confirmed that, other than the exchanges that the council had had with the Public Petitions Committee, no issues or concerns in relation to the operation of the current law on life sentences had been raised with the council.

As members might expect, the Cabinet Secretary for Justice regularly meets the Lord President to discuss matters of mutual concern. At no point has he, or any other members of the judiciary, expressed concern that their existing powers to sentence our most serious offenders are not sufficient. That point was well made by Rona Mackay and Ruth Maguire in their thoughtful speeches.

It is important that our sentencing law works to ensure that members of the public are protected from those who pose a serious risk to their safety, while also working to reintegrate offenders into society and to reduce reoffending. Prison is still the right place for the most serious offenders. That is why we have ended the previous system of automatic early release for serious offenders, which was, of course, introduced by the Conservative UK Government in the 1990s. The average length of prison sentences has increased by 21 per cent over the past decade.

Liam Kerr rose—

The minister is closing.

I am not persuaded that introducing whole-life sentences for a small minority of the most serious cases would make a practical difference to our justice system. I understand that, as of March 2019, of the 7,038 prisoners who are currently serving life sentences in England and Wales, just 63 are serving whole-life sentences.

If the Scottish judiciary were to take the same approach to use of whole-life sentences as the courts in England and Wales, I expect that very few such sentences would ever be imposed—considerably fewer than one per year—and that the small number of cases in which the judiciary might consider that to be appropriate would be cases such as those of Angus Sinclair or Peter Tobin, which we have discussed in the debate, in which it would be highly unlikely that the offender would, in any event, ever be released.

15:33  

This important debate has attracted many differing views, and has included comments such as “political posturing”, “political stunt”, “headline hunting” and “lock-’em-up-and-throw-away-the-key justice”. I want to put our proposal in context. I genuinely hope that, once I have done so, members will reflect on those comments, which I consider to have been very ill advised.

Our criminal justice system has a huge spectrum of criminal offences for which perpetrators might be convicted. At the lower end of the spectrum, the disposal on conviction might be a deferred sentence, a fine or a community payback or community service order. At the higher end are crimes that attract prison sentences.

Within that huge spectrum of offences are individuals from all walks of life who, for various reasons, fall foul of the law. Many offenders have underlying issues that contribute to their offending behaviour. Others who commit offences for reasons that are difficult to understand will never reoffend, as a result of appropriate early intervention measures and effective rehabilitation programmes and throughcare support. For the avoidance of doubt, I note that the proposed whole-life custody (Scotland) bill is not targeted at individuals who fall within the category of perpetrators that I have just described. Instead, it targets the thankfully small number of individuals who commit the most horrendous, depraved and heinous crimes, whom it will never be possible to release safely into society.

Will Margaret Mitchell take an intervention?

I ask John Finnie to be brief.

I am grateful. I know the regard that Margaret Mitchell has for Lady Dorrian. Having heard the minister’s comments, does Margaret Mitchell not believe that, if Lady Dorrian had concerns, she would have articulated them before now?

It is not up to the judiciary to influence policy. That is the whole point. This is about the discretion of the judiciary.

Perpetrators such as I just described fall within the wide category of criminals who receive a so-called life sentence, which is mandatory for anyone who is convicted of murder, but which by no stretch of the imagination means that they will spend the rest of their life behind bars. When imposing that mandatory sentence, judges in Scotland are required to set the punishment part of the sentence, which equates to a minimum period that the offender will actually spend in prison. As many members have said in the debate, the longest punishment part that has been handed down is 37 years, with most murderers serving between 12 and 20 years before becoming eligible for release.

When the person has served the minimum number of years that is set by the judge, there is the option for the Parole Board to consider them for release back into society on licence, with conditions and with them being supervised by criminal justice social workers for the rest of their life. The intensity of the supervision varies. A breach of the conditions, depending on the circumstances, may—only may—result in a return to custody.

I say to Daniel Johnson that an order for lifelong restriction will make release slightly more difficult, with extra risk-assessment requirements, but it still does not guarantee that there will be no release. That is the point that so many members today, including the minister, have failed to understand and accept.

A whole-life custody sentence would address the unacceptable situation in Scots law whereby there is no guarantee that dangerous offenders who are convicted of the most serious and vile offences involving, for example, brutal murders and vicious serious sexual offences, will never be released. With the power to hand down a whole-life custody sentence, the judiciary in Scotland would have the same discretion as their counterparts in England and Wales, where judges can give whole-life orders for offenders over the age of 21 who have committed extremely serious offences. The definition of that is in Liam Kerr’s consultation. It is significant that those orders have been held to comply with the European convention on human rights.

More important still is that our judges would be able to decide for themselves that a crime that had been committed was of such an abhorrent, violent and odious nature that “life” should mean “life”, and communities would be safer as a consequence.

To address John Finnie’s point about pressure on the prison estate, I note that there are 63 whole-life prisoners in England and Wales. Given that the population in Scotland is 10.8 times lower than the population south of the border, on a pro rata basis there would be approximately six whole-life prisoners in Scotland.

In addition, giving judges the power to hand down whole-life custody sentences would build trust in the justice system for victims and help to restore honesty in sentencing.

Contrary to Liam McArthur’s assertion, if a judge had good reason not to impose a whole-life custody sentence, they would never be compelled to do so, but when the victim’s family—and society at large—heard a judge say that a murderer would be going to prison for life, the judge would mean just that. The proposed bill would give judges the discretion and the power to ensure that the most deadly dangerous perpetrators spend literally the rest of their lives in custody in order to ensure that they will never again pose a threat to the public.