Chamber
Meeting of the Parliament 19 April 2012
19 Apr 2012 · S4 · Meeting of the Parliament
Item of business
Criminal Cases (Punishment and Review) (Scotland) Bill: Stage 1
Thank you for your forbearance, Presiding Officer.
I thank the Justice Committee for its careful stage 1 scrutiny of the Criminal Cases (Punishment and Review) (Scotland) Bill and I welcome the committee’s support for the bill’s general principles.
The bill deals with two discrete topics. Part 1 addresses an anomaly that has arisen with regard to the setting of the punishment part of non-mandatory life sentences by the courts. Part 2 provides a framework within which the Scottish Criminal Cases Review Commission can consider whether it is appropriate to disclose information that it holds relating to cases that it has referred to the appeal court, where the appeal has subsequently been abandoned. Although there is not a direct link between the two parts of the bill, we are legislating in those two general areas for essentially the same underlying reason: so that the public can continue to have full confidence in the processes of Scotland’s justice system.
Whether it is ensuring that offenders convicted of serious crimes are able to be sentenced appropriately by the courts or being as open and transparent as possible about all aspects of the al-Megrahi case, the Government is committed to doing everything that we can to ensure that the public can have confidence that we have a justice system that is fair, transparent and effective.
Part 1 is a direct response to a March 2011 appeal court judgment that concerned the setting of the punishment part of non-mandatory life sentences. The punishment part of a sentence is the length of time that a prisoner must serve before becoming eligible for parole. Although that judgment, known as the Petch and Foye case, affected only a small number of sentencing cases, with only around 75 offenders having been given non-mandatory life sentences in the past six years, the Government wanted to act quickly and appropriately to remedy the problem that the judgment raised.
As a result of the judgment, a number of offenders have successfully appealed and had the punishment part of their non-mandatory life sentence reduced. The judgment has produced what the appeal court noted was the anomalous result that some life prisoners may become eligible for parole at an earlier point in their sentence than would have been the case if they had been given a fixed or determinate sentence for the same offence.
It is important to emphasise that the Petch and Foye judgment did not and does not mean that serious offenders will be directly released early from prison. Any offender whose punishment part has been reduced will still need to satisfy the Parole Board for Scotland that they do not present a risk to public safety. If the Parole Board is not satisfied, the offender remains in prison and in custody.
Nonetheless, I am sure that we all agree that it is wrong in principle that our courts do not have sufficient discretion in law to avoid the anomalous result that some life prisoners may become eligible for parole at an earlier point in their sentence than would have been the case if they had been given a fixed sentence for the same offence. That is not what the law meant and it is, presumably, not what the sheriff who sentenced the offender meant.
Therefore, we are giving back to the courts appropriate discretion so that they can set a punishment part of a non-mandatory life sentence to satisfy the need for punishment of the offender.
We are aware that there has been some criticism of the provisions on the grounds that they are too complicated. We accept that the provisions are complex. That goes with the nature of the legislation and the terrain with which we are dealing. However, we do not think that they are unnecessarily complicated.
It is important to remember that our provisions exist within the context of European convention on human rights and domestic case law, as well as the framework of existing Scottish legislation.
I thank the Justice Committee for its careful stage 1 scrutiny of the Criminal Cases (Punishment and Review) (Scotland) Bill and I welcome the committee’s support for the bill’s general principles.
The bill deals with two discrete topics. Part 1 addresses an anomaly that has arisen with regard to the setting of the punishment part of non-mandatory life sentences by the courts. Part 2 provides a framework within which the Scottish Criminal Cases Review Commission can consider whether it is appropriate to disclose information that it holds relating to cases that it has referred to the appeal court, where the appeal has subsequently been abandoned. Although there is not a direct link between the two parts of the bill, we are legislating in those two general areas for essentially the same underlying reason: so that the public can continue to have full confidence in the processes of Scotland’s justice system.
Whether it is ensuring that offenders convicted of serious crimes are able to be sentenced appropriately by the courts or being as open and transparent as possible about all aspects of the al-Megrahi case, the Government is committed to doing everything that we can to ensure that the public can have confidence that we have a justice system that is fair, transparent and effective.
Part 1 is a direct response to a March 2011 appeal court judgment that concerned the setting of the punishment part of non-mandatory life sentences. The punishment part of a sentence is the length of time that a prisoner must serve before becoming eligible for parole. Although that judgment, known as the Petch and Foye case, affected only a small number of sentencing cases, with only around 75 offenders having been given non-mandatory life sentences in the past six years, the Government wanted to act quickly and appropriately to remedy the problem that the judgment raised.
As a result of the judgment, a number of offenders have successfully appealed and had the punishment part of their non-mandatory life sentence reduced. The judgment has produced what the appeal court noted was the anomalous result that some life prisoners may become eligible for parole at an earlier point in their sentence than would have been the case if they had been given a fixed or determinate sentence for the same offence.
It is important to emphasise that the Petch and Foye judgment did not and does not mean that serious offenders will be directly released early from prison. Any offender whose punishment part has been reduced will still need to satisfy the Parole Board for Scotland that they do not present a risk to public safety. If the Parole Board is not satisfied, the offender remains in prison and in custody.
Nonetheless, I am sure that we all agree that it is wrong in principle that our courts do not have sufficient discretion in law to avoid the anomalous result that some life prisoners may become eligible for parole at an earlier point in their sentence than would have been the case if they had been given a fixed sentence for the same offence. That is not what the law meant and it is, presumably, not what the sheriff who sentenced the offender meant.
Therefore, we are giving back to the courts appropriate discretion so that they can set a punishment part of a non-mandatory life sentence to satisfy the need for punishment of the offender.
We are aware that there has been some criticism of the provisions on the grounds that they are too complicated. We accept that the provisions are complex. That goes with the nature of the legislation and the terrain with which we are dealing. However, we do not think that they are unnecessarily complicated.
It is important to remember that our provisions exist within the context of European convention on human rights and domestic case law, as well as the framework of existing Scottish legislation.
In the same item of business
The Presiding Officer (Tricia Marwick)
NPA
The next item of business is a debate on motion S4M-02617, in the name of Kenny MacAskill, on the Criminal Cases (Punishment and Review) (Scotland) Bill.I wi...
The Deputy Presiding Officer (John Scott)
Con
It would appear that we have a problem with Mr MacAskill’s card. Can we do something about the sound? Interruption. Thank you.I call Mr MacAskill to speak to...
The Cabinet Secretary for Justice (Kenny MacAskill)
SNP
Thank you for your forbearance, Presiding Officer.I thank the Justice Committee for its careful stage 1 scrutiny of the Criminal Cases (Punishment and Review...
Lewis Macdonald (North East Scotland) (Lab)
Lab
I am interested in the cabinet secretary’s view on whether a less complex approach could have been taken had the bill been a bit more ambitious in scope. In ...
Kenny MacAskill
SNP
That is not the case. There are two separate matters. The Petch and Foye judgment caused considerable concern and was commented on not only by me but by just...
Malcolm Chisholm (Edinburgh Northern and Leith) (Lab)
Lab
Does the cabinet secretary accept that it would have been helpful to have consulted the information commissioner at a much earlier stage in order to resolve ...
Kenny MacAskill
SNP
It was not up to us to consult the information commissioner, because these matters have to be dealt with by the SCCRC. We have always sought to facilitate ev...
The Deputy Presiding Officer
Con
I call Christine Grahame to speak to the motion on behalf of the Justice Committee.15:11
Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)
SNP
I welcome the opportunity to open the debate on behalf of the Justice Committee—at least, that is what it says here. I thank all those who gave evidence to t...
Jenny Marra (North East Scotland) (Lab)
Lab
Alongside other committee members who are present, I had the opportunity to scrutinise the bill closely as it passed through the Justice Committee. I want to...
John Finnie (Highlands and Islands) (SNP)
SNP
Does the member accept that part 2 of the bill has a wider application than just Mr al-Megrahi’s case?
Jenny Marra
Lab
John Finnie may, like me, hope that part 2 will have a wider implication in future, although it is difficult to predict when that might be. However, we will ...
David McLetchie (Lothian) (Con)
Con
As other members have done, I speak as a member of the Justice Committee, which has had responsibility for scrutinising the bill, the first part of which was...
John Finnie
SNP
Does the member accept that the Government’s position remains that the manifesto commitment will be implemented once the terms of the McLeish commission are ...
David McLetchie
Con
Yes—I accept that that is the position, but that is a cover-up for not implementing anything, as Mr Finnie will realise, the longer he serves in this Parliam...
John Finnie (Highlands and Islands) (SNP)
SNP
I will concentrate on part 1 of the bill—the easy bit. We know that part 1 resulted from the much-talked-about Petch and Foye case. As we have heard, part 1 ...
Graeme Pearson (South Scotland) (Lab)
Lab
I note John Finnie’s light touch in describing part 1 as “the easy bit”. On that basis, I look forward to his forthcoming book, “A Treatise on Scots Law”, be...
Roderick Campbell (North East Fife) (SNP)
SNP
I refer members to my entry in the register of interests as a member of the Faculty of Advocates. One of the advantages of the recess is that it enables one ...
Humza Yousaf (Glasgow) (SNP)
SNP
As a member of the Justice Committee, I, too, thank everybody who came forward and gave evidence on the bill.There is a constant underlying theme in the deba...
John Mason (Glasgow Shettleston) (SNP)
SNP
Hear, hear.
Humza Yousaf
SNP
Thank you. However, luckily, my wife studied law, which was very helpful to me. I have sympathy for Alison McInnes and for Colin Keir—who has disappeared fro...
Malcolm Chisholm (Edinburgh Northern and Leith) (Lab)
Lab
Presiding Officer, I think that I deserve full marks for bravery as the first non-member of the Justice Committee to venture into these choppy waters without...
Mark McDonald (North East Scotland) (SNP)
SNP
Where Malcolm Chisholm leads, I will boldly follow, as another non-member of the Justice Committee entering bravely into the fray. Never has the old quotatio...
Mary Fee (West Scotland) (Lab)
Lab
The Criminal Cases (Punishment and Review) (Scotland) Bill is needed to remedy the judgment handed down in Petch and Foye v Her Majesty’s Advocate. The bill ...
Colin Keir (Edinburgh Western) (SNP)
SNP
Over the past year, members of the Justice Committee have been faced with some complex material to digest in the course of their deliberations.As we have hea...
Alison McInnes (North East Scotland) (LD)
LD
Like other committee members, I am grateful to everyone who submitted evidence on the bill, because they certainly helped us to get to grips with an extremel...
Dennis Robertson (Aberdeenshire West) (SNP)
SNP
When I was given the task of being a member of the Rural Affairs, Climate Change and Environment Committee, I never thought that I would be grateful for that...
Christine Grahame
SNP
I have to say that I confused myself. John Green is an intruder.
Dennis Robertson
SNP
I thought that it was males who had the problem with reds and greens.The matter that we are debating is very serious, and it needs to be resolved. I congratu...
The Deputy Presiding Officer (Elaine Smith)
Lab
That brings us to closing speeches. I remind members who were in the chamber for the debate that they should be here for closing speeches.I have a little bit...