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Chamber and committees

Meeting date: Wednesday, February 27, 2019

Meeting of the Parliament 27 February 2019

Agenda: Portfolio Question Time, Carers Allowance Supplement, Justice, Business Motion, Parliamentary Bureau Motions, Decision Time, Eating Disorders Awareness Week 2019


Contents


Justice

The Deputy Presiding Officer

The next item of business is a debate on motion S5M-16013, in the name of Daniel Johnson, on justice.

15:50  

Daniel Johnson (Edinburgh Southern) (Lab)

The legitimacy of the justice system relies on people understanding how it works and having confidence in the decisions that it makes. Without consistency and transparency in sentencing, it is impossible for the very serious decisions to be understood both by the person being sentenced and, perhaps more important, by victims and wider society, who look to the courts to ensure that justice is served. I am pleased to move the motion in my name, because I fear that our justice system still has a distance to travel on both consistency and transparency.

Today’s debate is prompted by the Christopher Daniel case, in which an individual was found guilty of sexual assault but was granted leniency by the sheriff and given an absolute discharge. One reason given for that was that the offence was the result of “inappropriate curiosity” rather than for

“the purposes of sexual gratification”.

The sheriff also referred to the accused’s future career and the fact that the complainer appeared to have suffered

“no injury or long-lasting effects”.

Those reasons are worth reiterating because the summary judgment has been taken down from the website.

Parliament needs to take care when it provides commentary on individual court cases, but I believe that the case raises some fundamental issues about the factors that it is appropriate to take into consideration when sentencing both the individual in that particular case and, more broadly, serious crimes such as sexual assault.

Three important issues arise from the case: the accused’s circumstances and prospects; the intention involved in the crime; and the outcome of that crime.

On the first issue, is it right for an individual’s career prospects and standing in the community to be grounds for leniency? Should it make a difference if an individual is a medical student rather than a modern apprentice, when they are being sentenced? I struggle to understand how or why that should be a reason for leniency, particularly for the most serious of crimes. More important, how can it be fair or just to sentence someone on the basis of the life chances that they have had to date? It cannot be right that two individuals receive different sentences for the same crime because they were or were not lucky in the lottery of life.

On the second issue, what is the balance between intent and outcome when considering culpability for a crime, sexual offences in particular? Intent is an important consideration when looking at responsibility or guilt for wrong-doing, but a lack of intent cannot trump the outcome. More important, the nature of sexual crimes is such that intention is largely a secondary consideration, because the act itself is so serious and so heinous. Whatever the motivation, sexual assault is a serious crime.

Finally, to what degree is harm to be taken into account in sentencing, and how should that be judged? Clearly, the outcome is important in assessing guilt and in sentencing, but it is a particularly difficult issue with regard to sexual crimes, as the damage that is caused is complicated and hard to detect and often does not manifest itself for many years after the crime took place.

The answers to these questions are complex, as is consideration of the issues; further, the judgments that are made in court, in relation to sentencing in particular, are complicated. No two sets of circumstances are identical; therefore, judicial discretion and independence are vital in the exercise of justice. However, consistency of consideration is vital too, and the considerations should be clear to all. It is for that precise reason that the Scottish Sentencing Council was created.

In the report that led to the Scottish Sentencing Council’s creation, Lord McFadyen said:

“It is generally accepted that there should be consistency in sentencing at every level of our courts. That is an aspect of fairness and justice. These principles demand that similar crimes committed in similar circumstances by offenders whose circumstances are similar should attract similar sentences.”

Indeed, the aims of the council are to promote consistency in sentencing, assist the development of sentencing policy and promote greater awareness and understanding of sentencing. That is a vital function in our justice system.

Our quarrel is not with the purpose or the scope of the council. The problem is the time that it is taking to implement any change. Lord McFadyen’s words were published in 2006—13 years ago. A body to develop sentencing guidelines was first consulted on by the then Scottish Office in 1994. The reality is that we have been discussing the need for sentencing guidelines for more than 25 years.

In the three and a half years since it was created, the Scottish Sentencing Council has produced only one guideline. By comparison, the Sentencing Guidelines Council—now the Sentencing Council—produced five publications relating to guidance on sentencing in its first three years. Indeed, the Scottish Sentencing Council’s approach and function were modelled on its counterpart in England and Wales, so it was not starting from a blank sheet of paper, so it would not be unreasonable for us to expect it to have made more progress

Of course, guidance on sentencing must not be rushed and must be subject to careful consideration and reflection. However, I think that it is right that we ask questions about whether progress has been adequate. Under the Criminal Justice and Licensing (Scotland) Act 2010, which created the council, ministers have the power to ask the council to examine particular issues and bring forward guidance. What engagement has the cabinet secretary had with the council and has he considered using that power? In particular, has he requested that guidance be brought forward on these matters?

The prosecution of sexual crimes is an issue that we need to take very seriously. For too long, survivors of these crimes have not received justice, and the system has not treated them or the crimes appropriately or effectively. We have made much progress, as reflected in the significantly increased volume of such cases that now reach court: as much as 80 per cent of the High Court’s workload now relates to serious sexual crimes. However, as long as we do not have a consistent approach to sentencing, and as long as the Government does not use its power to bring forward guidelines for the sentencing of these serious crimes, we will continue to let down victims and their families.

I move,

That the Parliament believes that transparency and consistency are fundamental to ensuring that victims’ and wider society’s interests are served by the justice system; notes recent cases raising questions about how individual circumstances inform sentencing; is concerned that it has taken three and a half years for the Scottish Sentencing Council to produce one set of sentencing guidelines; notes that guidelines on sexual assaults will not be available until after 2021, and considers this unacceptable.

15:58  

The Cabinet Secretary for Justice (Humza Yousaf)

I thank Daniel Johnson for bringing the debate to the chamber. I listened carefully to what he said and took a number of notes. If I do not address his, and others’ points, in my opening speech, I will do my best to do so when I sum up. I found myself agreeing with a lot of what Daniel Johnson said, although I might take a different view on some points.

At the heart of this debate is fairness. Fairness is critical, not only for the victims of crime and their families but—importantly, as the cornerstone of our democracy and the rule of law—for those who are accused of criminal offences.

All too often, victims of crime tell me that they do not feel that their voice is heard in the criminal justice system, and I am involved in a lot of work to try to rebalance some of that. I will turn to the issue of the victims task force later, if I have time. However, first, I will address the substance of the motion.

Daniel Johnson is right to say that the Scottish Sentencing Council was given responsibility for: promoting consistency in sentencing practice; assisting the development of policy in relation to sentencing; and, importantly, promoting greater awareness and understanding of sentencing policy and practice. I welcome the council’s progress on work to meet those objectives.

A lot of focus has already been and—no doubt, during the debate—will be put on the guidance that has been produced and the work that is under way. It is important to say from the outset that while producing sentencing guidelines is an integral part of the council’s work, it does more than that. It does research on sentencing; work on raising awareness—it has some fantastic online materials and materials about sentencing and its complexity that have been sent to schools; and work with victims of crime.

Notwithstanding that, I understand that members of Parliament will want to make their views known on the progress that they wish to see on particular guidelines.

Kezia Dugdale (Lothian) (Lab)

I have heard the minister say that victims’ voices should be heard throughout the justice system. Can he explain how their voices are heard in the Scottish Sentencing Council? I have read all three annual reports and that is not referenced anywhere.

Humza Yousaf

One of the reasons why guidelines can take a bit of time to come to fruition is because public consultation is a key part of that. At its first meeting, the council determined that every guideline that it produced would go out to public consultation—in the same way as there is consultation on legislation—so that people, including victims of crime, can potentially have an input.

Daniel Johnson touched on our independent judiciary—that is an important point that I want to emphasise. It is, of course, for the courts to make decisions on sentencing. One case has already been referenced in the debate and others may be, too. However, it is absolutely right that politicians and, in particular, Government do not interfere in those decisions.

Jenny Marra (North East Scotland) (Lab)

I agree with the cabinet secretary that politicians should not interfere with judicial independence, but does he agree that we have a duty to question when a sentence that is handed down is far out of kilter with public expectation?

Humza Yousaf

Yes. Accountability is different from independence. Independence is a fundamental cornerstone of the judiciary and the rule of law, but that does not mean that our judiciary is not accountable. Parliament has every right to question it. This debate is an example of that accountability and it is important that it takes place.

I am conscious of my lack of time, but I want to read a quote from Lady Dorrian, because the issue of the guidelines taking time to produce is important, particularly when it comes to sexual offences. I think that we all share in the endeavour to improve the experience of victims of sexual offences, because of the particular trauma that they face. However, it is also important that we get the guidelines right and that they are not rushed. In her news release yesterday, in response to today’s debate and the motion, Lady Dorrian said:

“With regard to the timing of the Council’s work programme, we recognise the desire to have sentencing guidelines in place as quickly as possible. However, the potential impact of guidelines which have not been properly considered and tested is considerable, both for individual cases and for the justice system as a whole. That’s why we took an early decision that our work should be evidence-based, involving appropriate levels of research and consultation, including public consultation on all guidelines.

We have committed to taking the necessary time to understand current practice, to look at what works and why, and to listen to those involved in and affected by sentencing decisions, including victims.”

I am aware that I am running out of time, so I will listen to the debate carefully and respond to members across the chamber. I cannot support Liam Kerr’s amendment because the reference to removing the test of what is unduly lenient would have considerable effects, but I will come to that in my closing remarks.

I move amendment S5M-16013.3, to leave out from “is concerned” to end and insert:

“further notes that it has taken three and a half years for the Scottish Sentencing Council to produce one set of sentencing guidelines; notes that guidelines on sexual assaults will not be available until after 2021; is pleased however that the council will soon announce the initial focus of its work on sexual offences; draws to the attention of the council its views as to the importance of work on sexual offences, and calls on all those with an interest in sentencing for sexual offences to become involved to build consensus as guidelines are developed.”

The Deputy Presiding Officer

Thank you very much.

Before I call Liam Kerr, I point out that a couple of members apparently want to speak but do not want to press their request-to-speak buttons. It is a good idea to do both.

I call Liam Kerr to speak to and move amendment S5M-16013.2. You have strictly four minutes, Mr Kerr.

16:04  

Liam Kerr (North East Scotland) (Con)

Scottish Conservatives will support the Labour motion at decision time.

Transparency and consistency are fundamental, but they are not there right now. Given that sentences are routinely—and sometimes automatically—shortened, people simply do not understand how long an offender will actually spend in prison. The President of the Society of Solicitors in the Supreme Court has recently suggested that

“the Scottish court system could be more open than it is”.

As Daniel Johnson rightly said, the Christopher Daniel judgment appears to make it clear that leniency is a function not of the crime but of whether the sentencer believes that the criminal is respectable and has a bright future. Yesterday, I read the Scottish Sentencing Council’s response to that debate. I agree that using individual cases as the rationale for changing sentencing policy would be unlikely to promote consistency, predictability or transparency—which, I respectfully suggest, is the job of the Scottish Sentencing Council—and that people might feel that, having been in existence for four years, running on a 16-year-old English model that released four such guidelines within its first three years, the time for results is now.

I turn to the Conservative amendment. I was horrified and baffled by the sentence that was handed down in the Christopher Daniel case. I, and many members of the public, found it difficult to comprehend how a person who is legally an adult could be found guilty of repeatedly sexually assaulting a six-year-old girl and yet receive an absolute discharge, which I emphasise means that they received no punishment and no criminal record.

The Law Society of Scotland’s helpful briefing for the debate says that

“the reasons for an absolute discharge vary but could include”

factors such as

“the circumstances of the crime”

or

“the offender’s previous good character”;

or the fact that

“the crime was very minor”

or that

“the accused was very young.”

However, even if those reasons were applicable in that particular case, surely none of them would override the established facts.

Crucially, the Crown lodged an appeal against the sentence and then withdrew it, all of which led to a significant—and justified—public outcry, grounded in the feeling that a young victim and her family had been let down by our justice system.

I wrote to the Lord Advocate and asked for: clarity on the disposal; a review of the decision and process; and reconsideration of the decision not to appeal. I am grateful to the Lord Advocate for his detailed reply.

His view on the Crown’s ability to appeal a sentence is the most interesting aspect in the context of my amendment. Such an ability to appeal is limited to two grounds: on a point of law; or on the basis that the sentence is unduly lenient. The latter test is the crux, and the key lies in the word “unduly”. The test is based on a 1995 case that mandates that a sentence is unduly lenient only if—to paraphrase the judgment—it falls outwith the range of reasonable sentences in the circumstances. If a disposal is not unduly lenient, the Crown’s hands are tied.

That leads me to conclude, as I have set down in the amendment, that the Crown’s ability to appeal sentences may be hampered by an overly restrictive test of undue leniency. Therefore it is entirely reasonable to ask the Scottish Law Commission, the remit of which is to

“recommend reforms to improve, simplify and update the law of Scotland”,

to investigate and consider whether the test of undue leniency requires reform. It is vital that prosecutors have the tools to appeal sentences that do not deliver justice.

The Lord Advocate rightly states that sentencing is entirely a matter for the judge or sheriff, and we all agree that politicians should not interfere with the independence of the judiciary. However, politicians do set the parameters for sentencing; indeed, the Scottish National Party will shortly seek to implement a presumption against sentences of less than 12 months. Therefore, it accepts that politicians have a role in how sentencing—and therefore appeal—operates.

There is also a role for politicians in ensuring that our justice system meets the needs of victims and society. It is crucial that victims understand and have faith in our system. When a perpetrator has walked free, having been found guilty of sexually assaulting a six-year-old girl, we would surely be failing in our duty if we did not empower the Scottish Law Commission to review whether the undue leniency test is overly restrictive. Parliament should vote for the amendment in my name to require it to do so.

I move amendment S5M-16013.2, to insert at end:

“, and notes that the Crown’s ability to appeal sentences may be hampered by an overly restrictive test of undue leniency”.

16:09  

John Finnie (Highlands and Islands) (Green)

The Scottish Green Party lodged an amendment in my name that concentrated on judicial training, although it included elements that the other parties included in the motion and amendments.

The motion says that

“transparency and consistency are fundamental”

and it “notes recent cases”. I have to be honest and say that I have some discomfort about that. We can all read newspapers, see cases being covered and query their disposals. I can think of a case in my region, which I was involved in peripherally through my support for an individual, that I was deeply unhappy about. However, I was not in court throughout the entire proceedings. There will always be cases on the extremities—one of them may well have been alluded to—where issues are brought sharply into focus.

The cabinet secretary, in the short time that he had to speak, mentioned the victims task force. I am impressed by the seniority of the people who are involved in that, and I hope that that is indicative of a willingness to take action. Everyone wants to have regard to the wellbeing of victims, and I and my party are no different. Nor am I beyond criticising the judiciary. Indeed, I did so in detail last year, when there were wholly inappropriate comments from a High Court judge during an appeal that perpetuating a number of stereotypes and myths about domestic violence.

Daniel Johnson’s motion mentions concern about the Scottish Sentencing Council, and the Scottish Government’s amendment alludes to that. We received not only a copy of the letter that was sent to Mr Johnson but a news release, which the cabinet secretary referred to. In the short time that is available to me, I will not be able to cover all the elements that I would like to cover, but I note that the Scottish Sentencing Council says:

“The potential impact of sentencing guidelines being introduced which have not been properly considered and tested would be considerable”.

I think that they would be considerable. The Sentencing Council also stresses

“the importance of taking an evidence-based approach, involving appropriate levels of research and consultation.”

Daniel Johnson

I emphasise that the point is not to fast track these matters but to prioritise them in the sentencing guidelines.

John Finnie

I thank the member.

Lady Dorrian has been mentioned. Colleagues on the Justice Committee have rightly spoken in reverent terms about her involvement with her case notes in relation to our on-going examination of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill and its provisions on ground rules hearings and evidence by commission. It is important that we listen to what she says.

The “Principles and purposes of sentencing” guideline states that

“reasons for sentencing decisions must be stated as clearly and openly as circumstances permit”

and that

“sentencing decisions should treat similar cases in a similar way, assisting consistency and predictability.”

On the idea that all cases are unique, we are familiar with the scenario that all members of this Parliament will represent their constituents equally and in the same way, but that does not mean that we treat them all in the same way. Obviously, we have different regard to the individual circumstances in cases. A frail older person who requires help will be treated differently from a very articulate younger person, perhaps. That very much applies in the case of judicial examination.

We have seen, for instance, that where there has been an overfocus on an individual case, risk aversion comes in. I have talked previously about how the focus on a particular case impacted on the management of offenders, with a significant downturn in the number of such measures being granted.

I welcome the domestic abuse legislation that is coming on track. The input from Scottish Women’s Aid to the judiciary on that is very welcome. Our amendment talked about not only judicial training, but judicial training advised by external individuals, which is very important.

I have some concerns about the nature of some of this debate, but of course everyone wants to see informed decision making from an evidence base.

The Deputy Presiding Officer

Thank you. I call Liam Kerr. [Interruption.] I do not know where I am today. I call Liam McArthur. I apologise to Mr Kerr and Mr McArthur for mixing them up.

16:13  

Liam McArthur (Orkney Islands) (LD)

I thank Daniel Johnson for bringing this debate on sentencing to the chamber. In the limited time that is available, it is going to be difficult for me to go into the complexities of the issues that have been thrown up, but the debate nevertheless serves a useful purpose.

As Mr Johnson highlighted, the catalyst, to some extent, has been the recent case involving Christopher Daniel, who was granted an absolute discharge after being found guilty of sexually assaulting a six-year-old child—a judgment that has understandably given rise to widespread public anxiety. It is a case that raises serious questions, and as we seek to grapple with those, we must not lose sight of the fact that at the heart of this is a family coming to terms with an extremely traumatic experience. They deserve transparency. They will also, I think, be questioning the consistency of a ruling that seems, as others have said, at odds with precedent.

John Finnie is right: no member in the chamber is privy to full knowledge of the details of the case. We all absolutely respect the importance of preserving and defending judicial discretion and independence. Equally, however, as the Macfadyen report in 2006, which gave rise to the Scottish Sentencing Council, acknowledged—this is a reversal of Daniel Johnson’s quote—

“a perception of inconsistency in sentencing is likely to lead to a loss of public confidence in the justice system.”

It went on to argue that guidelines

“would promote and encourage consistency of approach, and thus improve consistency in sentencing, while preserving the important element of judicial discretion.”

Such consistency is key, not just for the accused but, crucially, for victims and the wider public.

I fully accept that the process of developing such guidelines takes time. Lady Dorrian is absolutely correct to insist that guidelines need to be evidence based and subject to the widest possible scrutiny. She is right, too, to remind us of the impact that they have, not just on individual cases but on the wider justice system as a whole. However, it feels as if progress to date has been slow, with little expectation of that changing in the near future.

Without wanting to diminish the importance of the work that the Sentencing Council is undertaking, I say that, given the prospect of no guidelines on sexual offences being ready until after 2020-21—and potentially some time after 2021—it is right that Parliament raises its concerns in that regard.

I want to mention briefly the issue of short sentences. I was disturbed to note that the second most frequent custodial sentence length in 2017-18 was three months or less, at the same time that community payback order numbers were dropping by 15 per cent and there was a 10 per cent fall in the overall number of community sentences. I welcome the Government’s announcement of a presumption against sentences of less than 12 months, but I would be interested to know about the involvement of the Sentencing Council in ensuring that that presumption has a meaningful impact on the ground.

As everybody who has spoken so far has acknowledged, consistency and transparency lie at the very heart of public confidence in our justice system. At present, potentially much more needs to be done with some urgency to ensure greater consistency and transparency. On that basis, I support the motion in Daniel Johnson’s name.

The Deputy Presiding Officer

We come to the open debate. There is no time in hand, so speeches should be only four minutes long. I call Jenny Marra, to be followed by Rona Mackay.

16:16  

Jenny Marra (North East Scotland) (Lab)

I was shocked by the sentence passed down in the Christopher Daniel case, as were many members of the public, and I will address my remarks to that case.

I start by noting the confusion in the Scottish judiciary over the sentencing statement prepared by Sheriff Sinclair on that case. I was told today that the statement had been removed from the Scottish judiciary’s website at the end of last week by its communications team. When I asked why that was, the judiciary service said that in cases of absolute discharge it was policy to remove the sheriff’s statement after a period of time. However, today at 12.30 pm, I found that there was a note on a case of rape in which the result was absolute discharge, which was dated March 2017—two years ago. When I inquired as to why that was, I was told that it should probably have been removed and that the service is currently reviewing its policy on when to unpublish statements, but that it unpublished the Daniel statement late last week for certain reasons that are still being signed off.

Members will see my concern at the lack of transparency and the strange timing of the removal of the sentencing statement in this case. I hope that the cabinet secretary and the Lord Advocate will look into that matter, reassure Parliament about the reason for the removal and reassure us that the policy is appropriate, transparent and being followed correctly.

I turn to the case itself. Why were the public so shocked about it and why are guidelines needed as soon as possible? That is because a little girl was put through the process of giving evidence on the sexual abuse that she suffered, only for the sheriff to dismiss the impact that it would have on her life by saying:

“It was fortunate that the complainer appeared to have suffered no injury or long-lasting effects.”

As her mother said, how can that sheriff know that? Survivors of childhood sexual abuse have said in the past that the effects of the abuse can take years to manifest themselves. I think that there is general recognition of that, so why would a sheriff make such a remark?

The parents of that little girl put their trust in our justice system and took the very difficult decision—it would be difficult for any parent—that their child would provide evidence. It seems from the sheriff’s own statement that the sentence was based completely on the accused’s motivation and career prospects. The sheriff considered the offence to be

“the result of an entirely inappropriate curiosity ... rather than for the purpose of sexual gratification.”

He said, of the accused’s career prospects:

“Any recorded conviction for this offence would have serious consequences in terms of the accused’s future career. ... this was also a relevant factor in deciding how to deal with the case. Any sentence would mean that he would probably be unable to continue his university course.”

That is quite astonishing. Is justice blind today?

Many commentators, including Rape Crisis Scotland, have asked whether similar consideration would have been given to an accused whose career was not mapped out in that way, such as an unemployed 18-year-old or a young man without a “caring and supportive family”, to use the sheriff’s words. Would he, too, have escaped the sexual offences register? Is it not the purpose of our justice system and the sexual offences register to ensure that people who sexually abuse are registered and restricted appropriately?

Further confusion arises about the appeal. I understand that the Crown dropped the appeal on reading the sheriff’s sentencing statement. However, for me, the statement raises more questions than answers. Liam Kerr said in his speech that a case review is not possible because of the strict reading of “undue leniency”. I think that it is appropriate for Parliament to ask the Lord Advocate to give clarity to Parliament about why the case cannot be reviewed. The situation is wholly unsatisfactory and Parliament should demand clarity from the Lord Advocate for the family concerned and for public confidence across Scotland regarding cases of childhood sexual abuse.

Presiding Officer, I have a final point to make.

The Deputy Presiding Officer

I am afraid that—

Jenny Marra

Is it appropriate for any sheriff—not just Sheriff Sinclair—to be chief executive of the Scottish Criminal Cases Review Commission? Is there not an inherent conflict of interest in that dual role?

The Deputy Presiding Officer

Thank you. I have been a little more lenient, but I cannot keep that up.

16:21  

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I agree with the sentiment of Daniel Johnson’s motion, because transparency and consistency are fundamental to ensuring that victims and wider society’s interests are served by our justice system. I also acknowledge the point that it has taken three and a half years for the Scottish Sentencing Council to produce a set of sentencing guidelines and that the definitive guidelines on sexual assault cases will not be available until after 2021. Issuing guidelines on a subject of such importance is a complicated and intense process. The guidelines must be evidence based and the process must involve appropriate levels of research and consultation, including public consultation. Valid points have been made about the length of time that the process has taken, but the consequences of rushing through new guidelines could have a wide-reaching impact on the justice system in Scotland.

As Lady Dorrian, chair of the Sentencing Council, says, “Each case is unique,” and one size does not fit all. Variations in sentencing will therefore happen, depending on the particular circumstances of the case. We cannot use decisions on individual cases as the rationale for sentencing policy. That said, the public must have confidence in our justice system. I associate myself with everything that Jenny Marra has just said. The Christopher Daniel case was shocking and inexplicable, and we need some answers about that decision.

The Sentencing Council is holding two consultation exercises this year, seeking public views on the draft guidelines on the sentencing process. Its consultation will set out the various steps taken by judges and the factors that may be taken into account in making sentencing decisions, including sentencing decisions for young people. The areas of focus for the guidelines on sexual offences, which are absolutely crucial, given the rise in the number of crimes of that type, will also be available shortly. However, that is obviously a very sensitive and complex area. Work has begun on the consultation with a wide range of stakeholders, including victim support organisations, and it is likely that the Sentencing Council will develop multiple guidelines on sexual offending.

We know that the independence of the judiciary is paramount, and everyone agrees that we do not want ministerial control over the decisions made in our courts. However, how sentencing decisions are reached by individual judges—in particular, in cases where children are involved and the decisions are not perceived to be in the child’s best interest—should and must come under scrutiny. I agree with John Finnie and the Greens’ amendment that specialist training should be mandatory for judges dealing with sexual crimes and crimes involving children. I would appreciate the minister’s comments on that in his closing speech.

I believe that the Sentencing Council is aware of public feeling on the issue and of the cross-party emphasis on it in the chamber today, which I hope the council is listening to. The bottom line is that transparency and consistency in sentencing are vitally important, but getting it right has to be paramount.

16:24  

Maurice Corry (West Scotland) (Con)

I welcome today’s justice debate. As members of society, we need to have the utmost confidence in our justice system and we need to continuously ensure that we have a credible and reliable system. How sentencing works in that system is crucial to fuelling public confidence, but right now confidence is in danger of being eroded.

The case at the forefront of my mind—and those of my colleagues—is that of the sentencing of Christopher Daniel. His conviction for the sexual assault of a six-year-old over a period of two years saw the bizarre decision made by the sentencing judge that the perpetrator need face no punishment nor have his name added to the sex offenders register. The immaturity, educational attainment and future prospects of the perpetrator were placed above a six-year-old victim’s right to justice.

Each case is of course unique and needs to be considered as such, but there is surely the question of what precedent the case sets for future offenders. We need to get sentencing right. It needs to be fair to perpetrators, but equally it needs to be fair to victims. The Christopher Daniel case has raised serious questions and concerns. More often than not, it is the victim who risks being damaged by the court’s process. It is surely in the interest of the victim, first and foremost, as well as that of the public, that such cases can go to appeal.

It is important to remember that judges hold the authority to sentence as they see fit. I do not question their experience and I acknowledge their advantage in listening to all the evidence in court, which informs their decision making. However, recent cases have raised the question of how possible it is to appeal under the law on undue leniency. If anything, instances such as the Christopher Daniel case suggest that the criteria for undue leniency should be reformed, as my colleague Liam Kerr mentioned. A sexual assault conviction that results in an absolute discharge is reason enough to explore the reform of a system that seems to present too many restrictions. Reform could be the door to having fairer outcomes that give just punishment to perpetrators while emphasising considerate care for victims.

Connected with that, the publication of sentencing guidelines would help make our justice system somewhat more dependable than it has been under the SNP Government. The establishment of the Scottish Sentencing Council in 2015 was most welcome, but more than three years have passed since its arrival and no extensive guidelines have yet been published. I understand that the research behind such guidelines needs to take into account many complexities, and that it must be done with care and robustness, but a delay in publishing the guidelines is concerning, as is the fact that they might not be finalised until 2021.

Such delays are only part of the reason why sentencing in our justice system so often lacks transparency and openness. Worryingly, it has become common practice for offenders to be granted early release into the community. Indeed, those who receive prison sentences of less than four years are released automatically halfway through their time. In many cases, those offenders live in the community without supervision. The frequency of those early releases fosters confusion about how effective our sentencing system is. Moreover, the community sentencing pathway, which often results in breaches of order, does no favours to restoring the belief of communities in our justice process.

Humza Yousaf

I am trying not to get too political in this debate, but does Maurice Corry recognise that the automatic early release of long-term prisoners was ended by the SNP and was introduced by the UK Conservative Government?

Maurice Corry

I understand that, but things move on and change, and the severity of cases dictates how they should be dealt with. One rule does not fit all.

Sentencing in our justice system is clearly far from perfect. Without a tougher approach, perpetrators can escape a just sentence for their crime. I support the argument for greater transparency and establishing more consistency. To achieve that, we need more effective sentencing guidelines, supported by reformed criteria to target lenient sentences. That is how public confidence in our justice system can be restored.

16:28  

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I understand that many cases are controversial or have difficult circumstances, especially in terms of how they are viewed by the wider public; often, there is input from the media, too. I sympathise completely with and understand the concerns that many people have about sentencing in individual cases. Jenny Marra summed up well the circumstances of the recent case that has been much talked about during the debate. The outcome of that case has shocked many of us.

Last week, I was at a meeting of the cross-party group on adult survivors of childhood sexual abuse, of which I am deputy convener, at which we discussed the consequences of that sentencing decision for the work of some of the agencies that are involved. As a member of that cross-party group, it is only fair that I put on record the feelings of agencies such as the Moira Anderson Foundation about that particular sentencing. One of the group’s decisions was to write to the cabinet secretary. He will visit the group at some point and perhaps we will discuss some of those issues.

I fully support the principle that sentencing decisions in any criminal case are matters solely for the judge; the cabinet secretary mentioned that earlier. Such decisions are definitely not for politicians; they are for judges. The Judiciary and Courts (Scotland) Act 2008 ensures that that is the case. As members of this Parliament, we must not seek to obstruct the continued independence of the judiciary, although it is fine to express opinions, as we have done. Everyone is united on that.

It is important to recognise that there is a system of accountability in place: the Crown Office has the ability to appeal against unduly lenient sentences. Sentencing guidelines are also in place; if a judge does not follow them, they must state their reasons, in the interest of transparency.

Scotland’s sentencing guidelines came into force in October 2018 and were decided on by an independent advisory body. The guidelines were approved by the High Court, and members of the public were consulted about their feelings on the appropriateness of sentences being passed.

Daniel Johnson

Does Fulton MacGregor recognise that there are no guidelines in place for people to comment against and that that is part of the problem?

Fulton MacGregor

I thank the minister—

Daniel Johnson

Not yet.

Fulton MacGregor

Hopefully never. [Laughter.]

I thank the member for that intervention. The guidelines were scrutinised and put through several different processes before they were approved. As members have said, the Scottish Sentencing Council is working towards producing sentencing guidelines, which are at an early stage.

I return to the point that was made by Maurice Corry. There is no point in rushing haphazardly into such decisions. I trust that the Sentencing Council will do a thorough job to ensure that extensive consultation and engagement will play a key part in the production of the guidelines and that they will cover appropriately a wide range of areas.

I do not need to give any reassurance in this Parliament—particularly for members of the Justice Committee, such as Daniel Johnson—that the SNP Scottish Government is fully committed to putting victims at the centre of the justice system. We are taking the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill through Parliament at the moment. That is a fantastic piece of legislation, which I hope will continue to progress through all the stages.

We will continue to help victims and witnesses to feel supported, safe and informed at every stage of the process. I am pleased that the Cabinet Secretary for Justice and the Lord Advocate co-chair the new victims task force to improve victims’ experiences of the justice system.

I can see that I am coming to the end of my time. I agree with the Law Society that there is perhaps some work to do in involving both the public and victims in the overall process. I will support the Government at decision time.

16:33  

Kezia Dugdale (Lothian) (Lab)

In preparation for this afternoon’s debate, I went back to the Criminal Justice and Licensing (Scotland) Bill, which led to the creation of the Scottish Sentencing Council. During stage 1 consideration of that bill, Kenny MacAskill said:

“we believe that inconsistency in sentencing is a difficulty that must be dealt with. Equally, we believe that not only those who are given the privilege of sitting on the bench but people who represent interest groups such as victims organisations should be able to have some say ... There is something manifestly wrong in our society if the views of a representative of a victims organisation cannot be heard. That is why we believe that there should be a sentencing council.”—[Official Report, Justice Committee, 23 June 2009; c 2162.]

If the cabinet secretary will forgive me for saying so, I was disappointed in his response to my intervention, because to say that a public consultation is enough to satisfy the need to hear the voices of victims in the process falls very far short of victims’ expectations.

In the limited time that I have, the cabinet secretary will not be surprised to know that I intend to focus the rest of my remarks on the Woodburn family. For the information of the rest of Parliament, I am referring to the case of Shaun Woodburn, who was killed outside a pub in Leith on 1 January 2017. For more than a year, I have been working with his family to try to examine different aspects of how the justice system has failed them and Shaun’s memory.

I am grateful to the First Minister, to the cabinet secretary’s predecessor and to Humza Yousaf for meeting the Woodburn family on several occasions and moving quickly on some subjects, such as the law with regard to post mortems. I am hugely appreciative of the Lord Advocate’s work in that regard.

The cabinet secretary knows that I have a strong and passionate interest in delivering a victims commissioner, although that is an issue for another day. He also knows that I have concerns about the extent to which the code of practice for victims is shared with the victims of crime. Although it is the guide to the fundamental rights of victims of crime, it is very hard to access and get a hold of.

I will comment on the issues of sentencing, sentencing statements and the Scottish Sentencing Council. As a result of what happened on 1 January 2017, 13 charges were brought against three people. As the cabinet secretary knows, those charges resulted in just three convictions against one person, including a charge of culpable homicide—murder was dropped. The overall sentence for that crime was four years and it was an in cumulo sentence, which means that the family, to this day, do not know what Shaun’s life was worth. There is not one single number of years that accounts for what the charge of culpable homicide actually meant in the event of Shaun’s death. His family have found that really difficult to digest.

I was taken by Liam Kerr’s comments around the issue of undue leniency. How can we consider undue leniency when we do not even understand what the particular charge equals in the case of an in cumulo sentence? There is a huge amount of work to be done there.

I raised the case directly with the Lord President and got a very interesting reply from Lord Carloway, which detailed the rights that the Woodburn family had to a sentencing statement under the Victims and Witnesses (Scotland) Act 2014. The family had no idea that they could request details from Lady Stacey about why the sentence was what it was. When we got that information, it was—to a degree—hugely comforting. The family still do not think that four years is enough for their son’s killer, but at least they now have a better understanding of why the judge took the decision that they did. The Woodburn family believe that sentencing statements should be mandatory in all cases and I agree with them. They are also outraged that, after six years and £1.4 million, the Scottish Sentencing Council still has no plans to produce new guidelines on either murder or culpable homicide. The family were told that the sentence was within the guidelines, but given that no guidelines existed they remain extremely angry about what they experienced.

In the seconds that I have left, I say to the Cabinet Secretary for Justice that he has the power under section 7 of the Criminal Justice and Licensing (Scotland) Act 2010 to direct the Sentencing Council to consider preparing guidelines on any particular crime. When Michael Matheson was Cabinet Secretary for Justice, in response to a parliamentary question he ruled out asking the Sentencing Council to prepare any sentencing guidelines for murder or culpable homicide. However, I have a letter from the current cabinet secretary saying that his mind is still open to that prospect.

I therefore ask the cabinet secretary again to use the power that he has to instruct the Sentencing Council to move quickly to produce guidelines for the crimes of murder and culpable homicide, so that other families do not have to experience what the Woodburns have experienced.

16:37  

Gordon Lindhurst (Lothian) (Con)

The debate has attracted widespread interest and is perhaps most keenly of interest to victims of crime and their families, who will be following what we say.

Unfortunately, as we have been hearing during the debate, there has been a loss of confidence in the justice system. Suffering at the hand of an offender is a traumatic enough experience for many, and can lead to lifelong physical and mental scars. Clearly, the justice system should not unnecessarily add to that trauma. Victims and their families should have the assurance that justice has been delivered in their case, but also that justice is delivered consistently across the board, else the faith that they and others have placed in the justice system will be undermined.

Apparently inconsistent sentences for offenders can foster an initial sense of disbelief, which can sometimes lead to anger, upset and distrust. That can worsen if there is a lack of transparency in the system and if it is perceived to place too heavy a reliance on judicial discretion. That discretion could be strengthened, rather than weakened, by clear and appropriate sentencing guidelines. Such guidelines can assist in providing consistency and, as we have heard, also act as a basis for public understanding as to how decisions on sentences, at least in general terms, are reached.

Throughout this afternoon, we have been hearing about the cases that have led us to this debate. Some have involved sexual offences, but other crimes have also been the subject of intense public scrutiny, following the handing down of a sentence that was perceived to be too lenient. The Scottish Sentencing Council was set up more than three years ago, but it has yet to issue any substantive guidelines. Those guidelines should be properly considered and tested, of course, but what is to happen in the interim?

There is a saying that justice delayed is justice denied. Although, strictly speaking, the same motto may not apply to sentencing guidelines, if it is agreed by everyone that they can provide a useful framework, it would be helpful—more than helpful, perhaps—for them to be provided without further undue delay. That would be in the interests of “consistency, predictability and transparency”, to use the Scottish Sentencing Council’s words in its “offering of views” on this debate.

A lack of transparency and consistency on sentencing can perpetuate the grief and upset that are faced by people who have had to have dealings with the judicial system through absolutely no fault of their own. As the Scottish Conservative amendment highlights, more work may also need to be done when it comes to the test of undue leniency. What might appear to a member of the public to be an exceptionally soft sentence is not necessarily better understood simply by being categorised as not being unduly lenient.

We all recognise that sentencing is far from an easy task, and no two cases are ever exactly the same. Nevertheless, we must have a justice system that holds and maintains public confidence. It is clear from the debate that some way needs to be travelled to reach that goal.

16:41  

Shona Robison (Dundee City East) (SNP)

No one in the chamber would disagree that transparency and consistency are vital to ensure that victims’ and wider society’s interests are served by the justice system. I fully understand and appreciate the frustration at the time taken in issuing guidance on specific crimes.

The Scottish Sentencing Council’s work programme is progressing, with a meeting to be held this Friday, I understand. I hope that the council will have gathered from comments across the chamber that there is now scrutiny of it to make some pace. However, as others have said, the reality is that the process to develop guidelines takes time. The council has stated that, although it recognises the public’s desire to have guidelines in place quickly, the potential impact of not carrying out the necessary due diligence could be considerable, for individual cases and for the justice system as a whole. That was a point well made by John Finnie. Those things can be difficult to reconcile.

Daniel Johnson

The Sentencing Council for England and Wales produces around three guidelines a year. Is it rushing its guidelines?

Shona Robison

I would not want to say that it is rushing its guidelines, but it would be wrong of us to ignore the due diligence that is required in developing guidelines and, of course, the complexity of developing them, which I know Daniel Johnson understands. I agree with him that the fact that we are having this debate and that there has been consensus across the chamber that there needs to be pace will not go unrecognised by the council.

There needs to be a wide engagement with criminal justice and victim support organisations, third sector groups, academia and the judiciary throughout the process. Therefore, it is fundamental that the research is evidence based and properly consulted on, and that every area is thoroughly scrutinised prior to the issuing of any finalised sentencing guidance.

The Lord Justice Clerk and chair of the Scottish Sentencing Council, Lady Dorrian, has stated that, although the first guidelines would increase the transparency in sentencing, they would also

“form a strong foundation for our future work in developing further sentencing guidelines”,

particularly on specific offences, such as sexual offences. The law is, of course, a complex area. That is why it is right and proper to get this right.

Late last year, I met Sheriff Norman McFadyen and Graham Ackerman from the Scottish Sentencing Council to discuss its plans to develop sentencing guidelines for sexual offences, including offences against children. That meeting coincided with Dundee Evening Telegraph’s our kids need justice campaign, which arose out of particularly concerning local cases. That campaign has struck a chord across the city, and it shows the public’s interest in the matter.

I have raised those issues directly with the Lord Advocate and the justice secretary, and I was encouraged to hear that the council is thinking about holding wider public consultations events. I have encouraged the council to hold one in Dundee, not just to give local people a say in the framing of the guidance, but to allow the council to lay out the complexity of these matters. Such events will allow the council to discuss the issues directly with the public. The council has confirmed that it will hold consultation events during the year, and I hope that that shows an acknowledgement of the need for more transparency on such matters.

Sentencing and decisions that are taken by the judiciary in individual cases can often be seen as confusing by the public and victims. Some of those difficult cases have been raised this afternoon. I welcome the justice secretary’s setting up of a victims task force, the aim of which is to improve the experience of victims and witnesses through the justice system by helping their understanding and having their voices heard. That is very important.

I am sympathetic to the arguments that have been made this afternoon. It has been a good debate in which there has been a strong level of consensus. The best way forward is to establish guidelines that help to deliver consistency in sentencing, that deliver justice and that better protect victims, as well as ensuring that we protect the independence of the judiciary.

16:46  

Donald Cameron (Highlands and Islands) (Con)

I am pleased to be closing the debate for the Conservatives, not least because, during my admittedly rare sorties into the criminal courts, I gained some professional experience of seeing sentencing in practice and of its application in real life. I thank Daniel Johnson for bringing forward not only an important issue but a pertinent one, given the recent cases that have appeared in the media.

I do not want to dwell on the specific case of Christopher Daniel, which has been covered at length today. As my colleague Liam Kerr and others across the chamber have stated, I certainly do not seek to criticise the judiciary or its independence. We all accept that, ultimately, the role of the judiciary, in acting at its discretion, is to determine sentences in the circumstances of any given case. That is paramount and indisputable. However, as Liam Kerr said, that does not mean that we cannot question or develop general sentencing policy, as the Scottish Government is doing in relation to short sentences.

The role of the Scottish Sentencing Council deserves scrutiny. The council was established in October 2015 to prepare guidelines for the courts and to provide the public with information on sentencing. It is independent of Government and is yet to issue any substantial guidelines beyond a general statement on the principles and purposes of sentencing.

Everyone understands that thought and care are required when developing guidelines, but a time lag of six years, from the council’s establishment in 2015 to the publication of guidelines in 2021, is too long. I appreciate what the cabinet secretary said about the amount of work that the council does, but it is a question of priorities. The creation of sentencing guidelines is the most important thing that the council does, given that day in, day out, courts in Scotland are sentencing. As Kezia Dugdale and Liam McArthur said, we are right to register concern. No one is asking for rushed guidelines, but there needs to be a faster process.

Humza Yousaf

It is worth saying that the council is working on guidelines, such as those for causing death by driving and for the sentencing of young people. The member must accept that, if the council needs to reprioritise or deprioritise, some of the work that it is doing will need to be delayed even further.

Donald Cameron

I accept that the council needs to decide on what to prioritise, but in general terms, it must act faster.

The only point that I want to make about the Christopher Daniel case relates to undue leniency. Prosecutors felt that they were unable to challenge the ruling on the basis of undue leniency because the case did not meet the high test that is required. For Conservative members, that reinforces the need to revisit the test. The troubling fact is that even the exceptionally soft sanction of an absolute discharge for the sexual assault of a child was not determined by the Crown as counting as unduly lenient. That, therefore, made the case not worthy of a Crown appeal.

We suggest that the test is overly restrictive and requires to be reconsidered. Writing in the Journal of the Law Society of Scotland, the respected sheriff, Frank Crowe, said:

“Crown appeals against sentence are ... infrequent, since the test ... is a high one.”

Given its role in law reform, the Scottish Law Commission might be the appropriate body to investigate and make recommendations on this matter, because it is clear both in the case in question and in others that there are real issues with trust in our sentencing system. There are issues that hamper public confidence, as evidenced by figures last year that showed that just over a third of Scots were confident that the system gave punishments that fit the crime, and there are issues that further increase the plight of victims of serious offences, as evidenced by remarks made last May by a representative of Victim Support Scotland, who told the Justice Committee that

“communities have no faith in community sentencing.”—[Official Report, Justice Committee, 8 May 2018; c 39.]

The justice system should work for victims, not against them, and as far as sentencing is concerned, it should be more transparent.

I urge colleagues to support our amendment in Liam Kerr’s name, because it is clear that, in a multitude of cases, the high legal test of undue leniency requires to be revisited.

The Deputy Presiding Officer (Christine Grahame)

I call Humza Yousaf to close for the Government. Cabinet secretary, you have four minutes.

Humza Yousaf

How many minutes do I have? Six?

The Deputy Presiding Officer

I am afraid not. You need to be on your toes.

16:50  

Humza Yousaf

I will have to be quick.

First, I want to address the Conservative amendment and the motion itself. We cannot support the Conservative amendment, although I have listened to what Conservative members have said about undue leniency and will, on reflection, discuss it with the Scottish Law Commission. I point out that the legal test is the same in England and Wales, but the reason why I cannot support the amendment is that the particular facts in cases are known by sheriffs and judges, who must sometimes exercise leniency—for example, in cases of minor offences, first offences and so on. The question is about use of the word “undue” in the phrase “undue leniency”—in other words, a sentence being unduly lenient, or lenient to an unwarranted degree. It is appropriate for any appeal to be based on that legal test. However, I have heard what members have said, and they have every right to ask the Scottish Law Commission to examine the matter. However, there is a nuance between “leniency” and “undue leniency” that has to be recognised.

Liam Kerr

I thank the cabinet secretary for giving way. I will be as brief as I can be. In our amendment, we are simply asking the cabinet secretary to note that the

“ability to appeal ... may be hampered”.

Surely he can vote for that.

Humza Yousaf

I will not vote for the amendment, but I will certainly reflect on the good points that Liam Kerr and others have made on the issue.

I know that the Green Party amendment was not accepted for debate, but I acknowledge the points on judicial training that John Finnie made in the amendment and his speech. It is such an important issue; indeed, sheriffs and judges are receiving training in relation to the domestic abuse offence that will come into play on 1 April.

I move on to some of the other speeches that have been made and questions that have been asked. Jenny Marra’s speech and the points that she highlighted were well made. However, she referenced the Lord Advocate a lot in her speech, so I point out to her that she has every right to write, if she has not done so already, to the Lord Advocate to request a meeting with him, and to seek—if not demand—an explanation. After all, he is a member of the Government. As I keep saying, although we all respect the independence of the judiciary, there is a difference between independence and accountability, and the judiciary should be accountable.

Jenny Marra

Does the cabinet secretary agree that there is sufficient public interest in the Christopher Daniel case that the Lord Advocate should provide clarity to Parliament either by letter or through a statement?

Humza Yousaf

Jenny Marra will forgive me for not going into the detail of a specific case. That said, Liam Kerr has said that he received a response from the Lord Advocate on the Daniel case, so I say again that the member could write to the Lord Advocate to ask for the same explanation.

With regard to Kezia Dugdale’s very considered speech, she gave me just one example of victim input to the Scottish Sentencing Council, and I should have pointed out to her that one member of the council is, specifically, a victim representative. As for her request to me, I cannot demand that the council take forward a particular piece of work—

Daniel Johnson

You can ask.

Humza Yousaf

I can, of course, request that it do so, so in taking things forward, I will reflect very carefully on what members have said.

I said to Kezia Dugdale in our meeting that the Scottish Law Commission—which is, of course, different from the Scottish Sentencing Council—is looking at the law on murder and homicide. I think that it makes sense to wait for it to see whether changes need to be made to the law, and to explore guidelines after that. However, I am happy to take the matter offline and to discuss it with the member in further detail.

I am fast running out of time, but it is worth saying that the Scottish Sentencing Council is working on a number of guidelines, including the sentencing process in cases of death by driving, and the sentencing of young people. If members want the council to expedite the work on sexual offences, something else will have to be deprioritised—

The Deputy Presiding Officer

You must conclude, cabinet secretary.

Humza Yousaf

I will end by saying that I hope that members support our amendment.

16:55  

Daniel Johnson

I thank Fulton MacGregor for holding me in such high regard, and I thank members more generally, because this has been an engaged debate in which we have not avoided difficult issues and have actually shed light on the topic.

We have talked a lot about consistency, but transparency is equally important. In that regard, Kezia Dugdale’s speech was excellent, because the importance of transparency is not limited to sentencing guidelines. If we want people to have confidence in our justice system, transparency is fundamental in relation to how sentences are communicated and whether they are what they state, given automatic early release—the cabinet secretary was right to point out to the Conservatives who it was that introduced it—and in relation to the decisions of the Parole Board and to decisions on remand.

I will move on to the issues at hand. The most important and fundamental issue is equality. It is simply not right for an individual to be treated differently because of his opportunities in life to date and those that are ahead of him. We cannot countenance a medical student being treated differently from a person who is out of work. Of course, we need to look at the individual and must hold them responsible for the decisions that they have made, but can we hold them responsible or treat them differently because of the opportunities that they have had or not had in life?

I say, to make a wider point, that treating someone more leniently because of the education that they have had or are about to receive is the wrong way round. People with a better education should be held to account to a higher degree than people who have less education.

Quite simply, there is a real danger that people who are poor will be treated more harshly by our justice system. That is something that we in the Labour Party, we in the Parliament and we in this country cannot abide.

There are, potentially, wider issues. The recently released criminal proceedings statistics show that, in a number of cases of homicide and sexual assault, individuals were given fines or absolute discharges. We have to ask ourselves why. The problem is that we cannot, without guidelines and more detailed comparative statistics, have confidence that those outcomes were justified.

I welcome the fact that the Government’s amendment “notes” the length of time that it has taken to produce the guidelines so far. That is important, because it is right that we hold the Sentencing Council to account. However, we have to reflect the disappointment and the fact that we let victims down if we do not produce guidelines. For those reasons, I cannot support the Government’s amendment.

I have sympathy with the issue that is raised in the Conservative amendment: we have to look at the test of undue leniency. However, we must take great care with the general characterisation that sentences are too lenient. The reality is that, over the past three to four decades, sentences have been going up. I am not convinced that there is evidence that sentences are more lenient, overall.

It is a shame that the Green amendment was not selected for debate. We would not have voted for it, because it would have wiped out an important part of our motion, but the point about judicial training was well made and I broadly support it.

Judicial independence is one of the more complex and awkward issues in the debate, but it is important. I remind members that we have not just a moral duty but a legal responsibility to uphold the independence of the judiciary. It is important that we do not avoid issues that arise out of individual court cases because, at the end of the day, such cases can reveal issues that need to be discussed.

If Parliament has any function at all, it is to provide a forum for discussing issues that are of public concern. In particular, there is a role for Government and Parliament with regard to sentencing. If we did not have that role, we would not be discussing whether there should be a presumption against short sentences, and whether non-custodial sentences, such as community payback orders, should be promoted.

I will end my speech by considering Lady Dorrian’s comments. I hold Lady Dorrian in high regard. She is absolutely a voice of progress in our courts, and I very much welcome many of the things that she has brought forward. I agree that we need to take time and that we must not rush, but I do not think that we are asking the Scottish Sentencing Council to rush. Last year alone, the Sentencing Council for England and Wales produced seven sentencing guidelines.

Members should consider that, in Parliament, we take only a matter of months to pass legislation for which the Scottish Sentencing Council says it needs years to think about guidelines on how to sentence. Surely that is slightly awry. I agree with Liam McArthur and Shona Robison that the length of time that the Sentencing Council is taking needs to be looked at.

Especially because of the significant increase in the number of historical sexual crimes that are being considered in our High Court, there is a real and pressing need for guidelines in order to ensure that we get decisions and sentences right, and that people are punished for crimes that they committed in the past.

In the end, this is an argument about equality, fairness and making sure that everyone can understand and consent to the functioning of our justice system. I hope that members will support the Labour motion.