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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

McLetchie, David Con Lothian Watch on SPTV

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 described to us as creating

“a tortuous system which is barely intelligible to lawyers, let alone to the general public”,

and the second part of which is now largely redundant due to the actions of a leading Scottish newspaper.

As we have heard, part 1 seeks to address a complex anomaly in sentencing law that was identified in the Petch and Foye case. As a result of that judgment, prisoners who are given a discretionary life sentence or order for lifelong restriction can apply to become eligible for parole at an earlier stage in their sentence than prisoners who are serving sentences that are of fixed length. That is clearly inappropriate.

In the case of Petch and Foye v Her Majesty’s Advocate, the High Court ruled that a sentencing court should adopt a three-step approach to calculating the punishment part for a non-mandatory life sentence—that is, the period after which a prisoner who is serving a life sentence can become eligible for parole. The court concluded that the result of that complex staged calculation was that an individual who has been given an indeterminate life sentence may become eligible for consideration for parole at an earlier stage in their sentence than if they had been given an equivalent determinate sentence. That is not as crystal clear as Christine Grahame’s exposition of the matter, but it is my poor and humble best shot.

I add two caveats to the support that we give to part 1. First, it became clear that this area of the law is complex. A number of witnesses raised concern that the Government’s solution to the Petch and Foye anomaly risked making an already complex set of rules even more complex. Joanna Cherry QC, who appeared as an advocate depute in the Petch and Foye case, said that analysis of the current rules

“gave rise to the most difficult piece of statutory interpretation”—[Official Report, Justice Committee, 31 January 2012; c 865.]

of her career, and there was clear concern among some witnesses that the bill could make matters less rather than more intelligible.

Secondly, much of this could have been avoided if the Scottish National Party was better at implementing its own manifesto commitments. The Petch and Foye case is yet further evidence of the need to end automatic early release from prison. The Parliament legislated, via the Custodial Sentences and Weapons (Scotland) Act 2007, to end automatic early release, but the act has yet to be implemented.

We and others have repeatedly called for the ending of automatic early release, and have for many years argued that the custodial sentence that is handed down should be the sentence that is served. In fairness, the SNP also claims to be in favour of abolishing automatic early release—indeed, it pledged to do so in both its 2007 and 2011 manifestos, but it has manifestly failed to take any meaningful action towards doing so. It appears that the Government’s fondness for delay in the implementation of its manifesto pledges is not restricted to the independence referendum.

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Meeting of the Parliament 19 April 2012

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