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
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 seeks to deal successfully with an anomaly by which prisoners who are given a mandatory life sentence could apply to become eligible for parole earlier than those serving sentences of a fixed length. It is disappointing that we could have a loophole in our justice system today that would allow prisoners who have committed a crime so serious that it merits a life sentence to be eligible for parole earlier than those serving sentences of a fixed length.
I take this opportunity to thank Christine Grahame, who is not here just now, for her succinct examples earlier of sentencing and parole. Like some other speakers, I am not a member of the Justice Committee, so I found what she said quite helpful. However, I read diligently all the briefings for the debate and I am satisfied that the bill will successfully close the loophole, although I have some reservations about how it will do that.
I understand that part 1 is necessary because of the Petch and Foye judgment, but it only adds complexity to an already complicated area of the law. The current legislation has caused much debate and it has been subject to various interpretations by the courts. Although the bill remedies a loophole in the sentencing structure, it will not give a clear legislative solution, because what is being proposed is too similar to what has gone before.
In general, approaches to sentencing need to be less prescriptive and sentencing requirements need to be clearer and more appropriate. That would make it easier for the public and the victims of crime to understand how and why a sentence was given. I understand that the Justice Committee has asked the Scottish Government to ensure that victims and witnesses fully understand the sentences that are handed down by courts and how they are put into practice. I welcome that proposal, but the sentencing should also be made clearer to the families of the offenders and it should be put in such a way that they will be able to understand the sentence during what is a traumatic time.
The Law Society of Scotland made a valid point that proposed new section 2B(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 will give the sentencing judge discretion as to the length of the punishment part of a sentence. The Law Society is concerned that there is provision in the sentence calculation exercise for the sentencing judge to increase the punishment part period, having regard to the same features that could have been considered when that period was first identified. The Law Society feels that someone sentenced in that way might appeal on the basis that it leads to double counting. I feel that the Scottish Government should look into the potential for double counting in the bill.
I agree with the Justice Committee and the Law Society that the bill is acceptable as an interim measure that addresses the immediate concerns arising from the Petch and Foye judgment. However, the opportunity to simplify a complex part of our law has been missed. Indeed, our sentencing legislative framework should be reviewed in its entirety to make it clearer and easier to understand.
Part 2 was intended to allow the publication of the reasoning behind the decision to refer the case of Mr Abdelbaset al-Megrahi to the High Court as a possible miscarriage of justice. The reasons were originally not published because the Megrahi appeal was abandoned.
Arguably, part 2 is now redundant because, as members heard earlier, the reasons for the appeal being dropped were leaked and published in the press. I agree with the Justice Committee that the publication of the statement of reasons in the Megrahi case might serve a relatively limited purpose. However, there needs to be as much openness as possible about why Megrahi was allowed to make his appeal.
The main reason why part 2 was introduced was to facilitate disclosure in the Megrahi case. However, it is general in scope and can apply, in future, to cases other than that of Megrahi. That gives the Scottish Government an opportunity to consider whether the provisions are strong enough to apply in other cases.
If part 2 can apply to future cases, there will have to be a strong public interest in the case for publishing the reasons for appeal. There needs to be as much transparency as possible so that the public can have a greater understanding of the appeals process.
The general principles of the bill are decent. They set out to solve a couple of issues in our justice system. However, an opportunity has been missed to make the sentencing procedure more transparent and easier to understand. I also hope that part 2 is robust enough to apply to future cases.
16:16
I take this opportunity to thank Christine Grahame, who is not here just now, for her succinct examples earlier of sentencing and parole. Like some other speakers, I am not a member of the Justice Committee, so I found what she said quite helpful. However, I read diligently all the briefings for the debate and I am satisfied that the bill will successfully close the loophole, although I have some reservations about how it will do that.
I understand that part 1 is necessary because of the Petch and Foye judgment, but it only adds complexity to an already complicated area of the law. The current legislation has caused much debate and it has been subject to various interpretations by the courts. Although the bill remedies a loophole in the sentencing structure, it will not give a clear legislative solution, because what is being proposed is too similar to what has gone before.
In general, approaches to sentencing need to be less prescriptive and sentencing requirements need to be clearer and more appropriate. That would make it easier for the public and the victims of crime to understand how and why a sentence was given. I understand that the Justice Committee has asked the Scottish Government to ensure that victims and witnesses fully understand the sentences that are handed down by courts and how they are put into practice. I welcome that proposal, but the sentencing should also be made clearer to the families of the offenders and it should be put in such a way that they will be able to understand the sentence during what is a traumatic time.
The Law Society of Scotland made a valid point that proposed new section 2B(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 will give the sentencing judge discretion as to the length of the punishment part of a sentence. The Law Society is concerned that there is provision in the sentence calculation exercise for the sentencing judge to increase the punishment part period, having regard to the same features that could have been considered when that period was first identified. The Law Society feels that someone sentenced in that way might appeal on the basis that it leads to double counting. I feel that the Scottish Government should look into the potential for double counting in the bill.
I agree with the Justice Committee and the Law Society that the bill is acceptable as an interim measure that addresses the immediate concerns arising from the Petch and Foye judgment. However, the opportunity to simplify a complex part of our law has been missed. Indeed, our sentencing legislative framework should be reviewed in its entirety to make it clearer and easier to understand.
Part 2 was intended to allow the publication of the reasoning behind the decision to refer the case of Mr Abdelbaset al-Megrahi to the High Court as a possible miscarriage of justice. The reasons were originally not published because the Megrahi appeal was abandoned.
Arguably, part 2 is now redundant because, as members heard earlier, the reasons for the appeal being dropped were leaked and published in the press. I agree with the Justice Committee that the publication of the statement of reasons in the Megrahi case might serve a relatively limited purpose. However, there needs to be as much openness as possible about why Megrahi was allowed to make his appeal.
The main reason why part 2 was introduced was to facilitate disclosure in the Megrahi case. However, it is general in scope and can apply, in future, to cases other than that of Megrahi. That gives the Scottish Government an opportunity to consider whether the provisions are strong enough to apply in other cases.
If part 2 can apply to future cases, there will have to be a strong public interest in the case for publishing the reasons for appeal. There needs to be as much transparency as possible so that the public can have a greater understanding of the appeals process.
The general principles of the bill are decent. They set out to solve a couple of issues in our justice system. However, an opportunity has been missed to make the sentencing procedure more transparent and easier to understand. I also hope that part 2 is robust enough to apply to future cases.
16:16
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...