Hansard

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 the committee on what, is in football parlance—as I understand it—a bill of two halves. There could continue to be issues about conjoining distinctly separate pieces of legislation in one bill. The practice has an established history in that other legislature and we seem to have adopted it over the past 13 years, but it is perhaps not the best practice.

As a result, the evidence-taking sessions were in two distinct categories: the Petch and Foye group and the Megrahi group—I am using shorthand. I will therefore deal with the bill in those two distinct parts. I thank all the witnesses for their time and contributions

First, I will comment on part 1. I take a deep breath, because this is tricky stuff. I commend the committee members and indeed myself for struggling week in, week out to understand the solution to the Petch and Foye problem—I stress the solution, not the problem.

First, what is the problem? I know that my learned friend Rod Campbell will do a far better job than me of describing it, although he might kill me for saying that. I will repeat to some extent what the cabinet secretary said. In 2011, the appeal court by a majority ruled that convicted sex offenders Messrs Petch and Foye, because of an anomaly in the law, could become eligible for parole earlier than someone who was serving a mandatory life sentence.

By way of explanation, class, there is the mandatory life sentence for murder, and the determinate sentence and the discretionary sentence for other serious offences short of murder. The problem lies with the discretionary sentence, which comprises a punishment element and an element for protection of the public. Eligibility for parole relates only to the punishment part, and it kicks in after 50 per cent of the punishment part has been served. If a large chunk of the discretionary sentence is for protection of the public, we could have, as in Petch and Foye, serious sex offenders applying for parole earlier than someone on a determinate sentence.

The problem is the solution on offer to the committee, which we found overly complex and which is one big headache, not just for me and members of the public but, I have to say, for some practitioners, including a Queen’s counsel who gave evidence. Am I embarrassed to admit a degree of defeat? Not in the least. Although I am mindful that I speak for the committee, I think that it is fair to say that we all struggled with the bill. To be frank, some committee meetings had the flavour of a final-year law tutorial. Even the question-and-answer page on the bill on the Government’s website states:

“This is a very complex area of law.”

The Petch and Foye ruling was by a five to two majority and the appeal court was not able to agree the terms of the judgment, so I am in good company.

I will take another deep breath. Sit up straight, class. Here are some working examples. For ease of consumption, I have colour coded them. Members will be tested later. The first example concerns the mandatory life sentence. John Black is convicted of murder following a fight outside a bar and, as required by law, he is given a mandatory life sentence. After taking into account the seriousness of the offence, any previous convictions and whether there has been an early guilty plea, the court says that John Black must serve at least 20 years in prison before he is eligible for parole. We know the score—it is 20 years.

Now I move to the determinate life sentence. John Brown is convicted of serious assault following a fight outside a bar. He escapes a murder charge simply because of the speed of the ambulance and the skills of the surgeon. He is therefore not charged with murder and is convicted of a serious assault to the danger of life, which does not attract a mandatory life sentence. He is given a determinate sentence of 20 years to reflect the gravity of the crime, but he will be eligible to apply for parole after 10 years, and he must be released after serving two thirds of his sentence. That is how determinate sentencing works, by the way: a 20-year sentence does not mean 20 years in prison; it means 16-ish years.

I hope that members are still with me as I move on to the non-mandatory life sentence. John Red is convicted of a similar crime of serious assault following a fight outside a bar. However, the court considers that the pattern of behaviour that he has demonstrated means that there is a likelihood that, if he is at liberty, he will be a danger to the public. He is therefore given a non-mandatory life sentence, which effectively means that, even when he is eligible to apply for parole halfway through his sentence, he will be released only if the Parole Board considers that he is no longer a risk to the public. He cannot be released automatically after he has served two thirds of his sentence.

It is when calculating the punishment part of John Green’s sentence that things get tricky. Let us say that Mr Green gets 20 years, but five of those are for public protection. We do not need a calculator—perhaps we do by this stage—to calculate that eligibility to apply for parole is at half of 15 years, not half of 20 years. Mr Green would be eligible for release after seven and a half years, not 10. That is the anomaly. I think that I am understanding this.

Members should remember John Black, John Brown and John Red—I will give members a test when they are leaving the chamber. For further working examples on the problem, I direct members to the Government’s website because I have run out of codeine. I do not, however, fault the Government, because the appeal court’s decision compelled legislative intervention.

To cut to the chase, why make a complex area more complex? I give the suggestion of the Law Society of Scotland and the Faculty of Advocates, on which the committee remarks in our conclusion at paragraph 94 of our report. We were attracted to the simplicity of a less prescriptive approach of enshrining in the proposed legislation a principle that a discretionary life prisoner, such as our Mr John Red, should never be able to apply for parole earlier than a non-mandatory lifer such as Mr Brown. I say gently to the cabinet secretary that if there had been a formal consultation on part 1—although I hear what he is saying about what has happened subsequently—simpler solutions would have been on offer such as those that were presented to us.

It is undeniable that, although part 2 was drafted in general terms, it was proposed to enable publication of the SCCRC’s statement of reasons in the case of Abdelbaset al-Megrahi. At this point, Presiding Officer, I declare an interest as a member of the Justice for Megrahi campaign.

Having exposed the difficulties of part 1, I now have to repeat the difficulties that arise with part 2 in particular because of the marriage of disparate pieces of legislation. This is not the first time that I have had to raise such issues.

Notwithstanding the fact that all the evidence that we took was directed at the al-Megrahi case and the fact that, on 25 March, the Sunday Herald published most of the statement of reasons, part 2 cannot now be detached from part 1, even if someone wanted to do so. Indeed, I give notice as convener of the Justice Committee that if an attempt was made to lodge an amendment to delete part 2, I would reject it as a wrecking amendment and therefore incompetent. Of course, such an amendment could be re-presented at stage 3, but that would be a matter for the Presiding Officer. To some extent, it is a fiction to say that part 2 will have general application, but there is an issue around whether it is robust enough to do its job in general circumstances and not just in relation to such a high-profile case.

There was a fair bit of to-ing and fro-ing, which might have looked like “Blankety Blank”, between the Scottish Government and the UK Government’s Information Commissioner’s Office with regard to the restrictions that the Data Protection Act 1998 might impose on publication of the statement of reasons. That turned out to be a bit of a red herring because, at the end of the day, the UK institutions appeared to be pretty relaxed about publication. I suggest that that progress was made because of the pressure that the committee put on the Government. That approach might prove to be useful should such intergovernmental co-operation be required again, although this might have been a special case.

That was my executive summary. The bill has two parts: I can sum up by saying that part 1 is overcomplex and part 2 is perhaps redundant. That is not the cabinet secretary’s fault but, as has been said before and will no doubt be said again, we are where we are.

Now, as the tumbleweed gathers round my ankles, I leave the floor to the other committee members. I have run out of codeine, but I have spare supplies of aspirin.

Before I forget, I point out that, in spite of all the aforesaid, the committee supports the general principles of the bill. As a caveat, I remind the cabinet secretary that I speak as convener of the committee, not as a Scottish National Party back bencher—I am not looking to build a case for a by-election in my constituency.

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