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
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 take some time to reflect on not just the principles of the bill, but its substance. A great range of views have been expressed on what is a complex bill, as the Justice Committee convener has set out. It is important that those views are aired in the chamber from the outset.
The most important thing in the scrutiny process is that we take the time to get the bill right, which means right for the victims of crime, for the courts and their procedures and for those who are sentenced in our courts. Our justice system is built on the foundations of justice, compassion and integrity, which are the benchmarks against which we as lawmakers should measure any bill that comes before the Parliament. On justice, does the bill get it right for the victims of crime? On compassion, will the bill ensure that justice is proportionate? On integrity, will the bill work effectively in our justice system?
In analysing the reasons behind the bill, we find that its principles go hand in hand with those that underpin our system. Part 1 seeks to rectify an anomaly in the law that has led to a method of sentencing that has been seen to jeopardise the principles of integrity and justice. As we have heard, through the case of Petch and Foye, sentencing in non-mandatory life sentences, including orders for lifelong restriction, have been subject to interpretation that has resulted in sentences being reduced to a point at which offenders will be considered by the Parole Board for Scotland earlier than they might otherwise have been. As a result, there is an element of doubt and confusion, not only among victims and the wider public, but among the legal profession, as the convener pointed out.
Put simply, the bill seeks to address the anomaly by reinstating to judges discretion to hand down sentences that are deemed appropriate in each case. In doing so, the bill seeks to restore integrity in the system as well as a sense of fairness and confidence in the eyes of victims and their families that offenders are being sentenced correctly for the crimes that they commit. Introducing legislation that ensures that courts can sentence dangerous and violent offenders appropriately and in compliance with human rights can only be a good thing. However, we can act on that principle only if the bill that is drafted to rectify the problem is clear, coherent and effective.
As the convener explained, the evidence sessions in the Justice Committee on part 1 of the bill were mired in uncertainty among committee members and witnesses. Most important, there is no consensus that the bill will build confidence in our justice system. There is still an opinion that people who come to the court to be sentenced as well as victims and their families are still confused by the sentencing rules in this country, and there is further confusion not just among committee members, but among qualified and experienced legal professionals.
I will give just one example. Back in January, when the committee first took evidence on the bill, James Wolffe QC stated:
“The approach that is taken in the amendments to existing legislation that are in the bill is to take an already complex piece of legislation and make it even more complex.”
He went on to say:
“sentencing judges are expected to explain sentences in a way that will be intelligible not only to the accused who is being punished and sentenced, but to the victims of the crime, the public at large and, ultimately, the appeal court. It is open to question, at least, whether provisions of such complexity will be helpful to sentencing judges in the task that they must carry out”.—[Official Report, Justice Committee, 31 January 2012; c 864-5.]
I share the concerns of Mr Wolffe and others who have given evidence on the bill and who have noted the wider implications for victims, the public and the appeal court, making a complex process even more so. At this stage of the parliamentary process on the bill, I urge the cabinet secretary to take evidence from other European countries on how they manage to integrate the ECHR compliance in this form of sentence. Perhaps Scotland can learn lessons from other jurisdictions where there is more clarity.
There are similar concerns about part 2. While noting the good intention behind the bill, contributors to the Justice Committee’s evidence sessions have aired very different opinions on how effective part 2 will be in addressing the issues that it seeks to rectify. Len Murray from the Justice for Megrahi group described the bill as
“a sledgehammer to crack a fairly small walnut.”—[Official Report, Justice Committee, 7 February 2012; c 900.]
That appears to have been substantiated by the publication in a well-known Sunday newspaper of the statement of reasons a couple of weeks ago. Although the convener of the Justice Committee and indeed the First Minister himself appeared on television to welcome its publication, questions were undoubtedly raised about the competence and necessity of part 2.
It is integral to public confidence that the Government should produce legislation that is necessary and effective. Although out of the Scottish Government’s hands, that process was undermined by a Sunday newspaper’s publication of the statement of reasons.
The most important thing in the scrutiny process is that we take the time to get the bill right, which means right for the victims of crime, for the courts and their procedures and for those who are sentenced in our courts. Our justice system is built on the foundations of justice, compassion and integrity, which are the benchmarks against which we as lawmakers should measure any bill that comes before the Parliament. On justice, does the bill get it right for the victims of crime? On compassion, will the bill ensure that justice is proportionate? On integrity, will the bill work effectively in our justice system?
In analysing the reasons behind the bill, we find that its principles go hand in hand with those that underpin our system. Part 1 seeks to rectify an anomaly in the law that has led to a method of sentencing that has been seen to jeopardise the principles of integrity and justice. As we have heard, through the case of Petch and Foye, sentencing in non-mandatory life sentences, including orders for lifelong restriction, have been subject to interpretation that has resulted in sentences being reduced to a point at which offenders will be considered by the Parole Board for Scotland earlier than they might otherwise have been. As a result, there is an element of doubt and confusion, not only among victims and the wider public, but among the legal profession, as the convener pointed out.
Put simply, the bill seeks to address the anomaly by reinstating to judges discretion to hand down sentences that are deemed appropriate in each case. In doing so, the bill seeks to restore integrity in the system as well as a sense of fairness and confidence in the eyes of victims and their families that offenders are being sentenced correctly for the crimes that they commit. Introducing legislation that ensures that courts can sentence dangerous and violent offenders appropriately and in compliance with human rights can only be a good thing. However, we can act on that principle only if the bill that is drafted to rectify the problem is clear, coherent and effective.
As the convener explained, the evidence sessions in the Justice Committee on part 1 of the bill were mired in uncertainty among committee members and witnesses. Most important, there is no consensus that the bill will build confidence in our justice system. There is still an opinion that people who come to the court to be sentenced as well as victims and their families are still confused by the sentencing rules in this country, and there is further confusion not just among committee members, but among qualified and experienced legal professionals.
I will give just one example. Back in January, when the committee first took evidence on the bill, James Wolffe QC stated:
“The approach that is taken in the amendments to existing legislation that are in the bill is to take an already complex piece of legislation and make it even more complex.”
He went on to say:
“sentencing judges are expected to explain sentences in a way that will be intelligible not only to the accused who is being punished and sentenced, but to the victims of the crime, the public at large and, ultimately, the appeal court. It is open to question, at least, whether provisions of such complexity will be helpful to sentencing judges in the task that they must carry out”.—[Official Report, Justice Committee, 31 January 2012; c 864-5.]
I share the concerns of Mr Wolffe and others who have given evidence on the bill and who have noted the wider implications for victims, the public and the appeal court, making a complex process even more so. At this stage of the parliamentary process on the bill, I urge the cabinet secretary to take evidence from other European countries on how they manage to integrate the ECHR compliance in this form of sentence. Perhaps Scotland can learn lessons from other jurisdictions where there is more clarity.
There are similar concerns about part 2. While noting the good intention behind the bill, contributors to the Justice Committee’s evidence sessions have aired very different opinions on how effective part 2 will be in addressing the issues that it seeks to rectify. Len Murray from the Justice for Megrahi group described the bill as
“a sledgehammer to crack a fairly small walnut.”—[Official Report, Justice Committee, 7 February 2012; c 900.]
That appears to have been substantiated by the publication in a well-known Sunday newspaper of the statement of reasons a couple of weeks ago. Although the convener of the Justice Committee and indeed the First Minister himself appeared on television to welcome its publication, questions were undoubtedly raised about the competence and necessity of part 2.
It is integral to public confidence that the Government should produce legislation that is necessary and effective. Although out of the Scottish Government’s hands, that process was undermined by a Sunday newspaper’s publication of the statement of reasons.
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...