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
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 justice spokespeople from all parties. There was significant public concern that must be addressed.
In the bill, we address two specific matters: the Petch and Foye judgment, and a matter that relates to the Scottish Criminal Cases Review Commission. There is a time and a place for further legislation, and I have had discussions about that with Opposition members. The bill should not be viewed as an opportunity to make significant change; that will have to come in other legislation. Part 1 of the bill is about doing what is appropriate to resolve an issue that arose as a result of a court of appeal decision.
Although the matter is complex, the proposal is not unnecessarily so. We have been open to those who complain and suggest that there is an alternative and better position but, so far, we have received nothing. By providing a clear statutory framework within which judges must calculate the punishment part of a non-mandatory life sentence, we are making the law clearer and reducing the risk that sentencing decisions will be overturned on appeal.
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 if the appeal is subsequently abandoned.
Although the provisions are general, members will be well aware that we introduced them to address the situation that had arisen with the statement of reasons in the al-Megrahi case.
The chamber will be aware that, late last month, the Sunday Herald published the commission’s statement of reasons for referring Mr al-Megrahi’s case to the appeal court. Although any urgency in passing these provisions might have diminished as a result, we are pleased that the Justice Committee supports our position that there should be as much openness as possible in relation to abandoned appeals arising from a reference from the SCCRC where there is a substantial public interest.
Notwithstanding recent events, we are proposing a general framework that might have application in other cases in future. To be fair, we should remember that, in the 13 years that it has been in existence, the commission has referred to court only three cases where an appeal has been abandoned, one of which is of course the al-Megrahi case. Although it is ultimately a matter for the commission, we understand from the commission that, in the other two cases, disclosure of information is not thought likely to be appropriate. However, we simply do not know whether other cases in future will give rise to the considerations that have occurred in the al-Megrahi case.
As our response to the stage 1 report makes clear, we consider that our framework for disclosure of information is robust and that, as it has not been narrowly designed simply for the circumstances of the al-Megrahi case, it can be applied in a range of relevant cases. We cannot speculate on such matters but at least we will have a framework to address any such case that might arise.
It is worth pausing to remind ourselves why the framework was thought necessary in the first place. In the normal course of events, the material in the commission’s statement of reasons in the al-Megrahi case could have been tested in court. However, as members will be aware, Mr al-Megrahi chose to drop his appeal in February 2009. Given the exceptional level of wider public interest in the al-Megrahi case, we have consistently done all that we can within the devolved powers of the Scottish Parliament to facilitate the commission’s release of the statement of reasons.
During stage 1, the question of how the commission could comply with data protection laws to help enable publication of the statement of reasons in the al-Megrahi case was discussed. Although events might have rendered the question moot in the case of Mr al-Megrahi, it would be helpful to explain how data protection will apply in the consideration of disclosure of information in future cases.
In the bill, we address two specific matters: the Petch and Foye judgment, and a matter that relates to the Scottish Criminal Cases Review Commission. There is a time and a place for further legislation, and I have had discussions about that with Opposition members. The bill should not be viewed as an opportunity to make significant change; that will have to come in other legislation. Part 1 of the bill is about doing what is appropriate to resolve an issue that arose as a result of a court of appeal decision.
Although the matter is complex, the proposal is not unnecessarily so. We have been open to those who complain and suggest that there is an alternative and better position but, so far, we have received nothing. By providing a clear statutory framework within which judges must calculate the punishment part of a non-mandatory life sentence, we are making the law clearer and reducing the risk that sentencing decisions will be overturned on appeal.
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 if the appeal is subsequently abandoned.
Although the provisions are general, members will be well aware that we introduced them to address the situation that had arisen with the statement of reasons in the al-Megrahi case.
The chamber will be aware that, late last month, the Sunday Herald published the commission’s statement of reasons for referring Mr al-Megrahi’s case to the appeal court. Although any urgency in passing these provisions might have diminished as a result, we are pleased that the Justice Committee supports our position that there should be as much openness as possible in relation to abandoned appeals arising from a reference from the SCCRC where there is a substantial public interest.
Notwithstanding recent events, we are proposing a general framework that might have application in other cases in future. To be fair, we should remember that, in the 13 years that it has been in existence, the commission has referred to court only three cases where an appeal has been abandoned, one of which is of course the al-Megrahi case. Although it is ultimately a matter for the commission, we understand from the commission that, in the other two cases, disclosure of information is not thought likely to be appropriate. However, we simply do not know whether other cases in future will give rise to the considerations that have occurred in the al-Megrahi case.
As our response to the stage 1 report makes clear, we consider that our framework for disclosure of information is robust and that, as it has not been narrowly designed simply for the circumstances of the al-Megrahi case, it can be applied in a range of relevant cases. We cannot speculate on such matters but at least we will have a framework to address any such case that might arise.
It is worth pausing to remind ourselves why the framework was thought necessary in the first place. In the normal course of events, the material in the commission’s statement of reasons in the al-Megrahi case could have been tested in court. However, as members will be aware, Mr al-Megrahi chose to drop his appeal in February 2009. Given the exceptional level of wider public interest in the al-Megrahi case, we have consistently done all that we can within the devolved powers of the Scottish Parliament to facilitate the commission’s release of the statement of reasons.
During stage 1, the question of how the commission could comply with data protection laws to help enable publication of the statement of reasons in the al-Megrahi case was discussed. Although events might have rendered the question moot in the case of Mr al-Megrahi, it would be helpful to explain how data protection will apply in the consideration of disclosure of information in future cases.
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...