Hansard

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 relates to the time that prisoners who are given a discretionary life sentence or an order for lifelong restriction must serve before becoming eligible for parole.

We have heard from various sources that the bill is complex but not unintelligible. We need to bear in mind the practitioners who will use the act. The people who will impose discretionary life sentences and orders for lifelong restriction are perhaps better placed than I am to understand the complexities. We know that the subject is complex and that the appeal court did not reach agreement on the terms of the judgment in the Petch and Foye case, which was decided by a majority of five to two.

Part 1 will introduce a clear framework for judges to calculate sentences and make the process easier to understand. Petch and Foye are two particularly unpleasant individuals. Petch was found guilty of two charges of rape and was given a discretionary life sentence. Foye pled guilty to a charge of rape and was given an order for lifelong restriction. Both appealed the punishment elements of the sentences. As we have heard on a number of occasions, the punishment part is the period that must be served before a prisoner is eligible for parole. In 2011, the appeal court ruled on the periods that Petch and Foye had to serve before being eligible for parole.

We have heard the situation being described as “an anomaly”. I do not know whether it is a simple or a complex anomaly, but it has certainly required a complex solution.

We heard from the Cabinet Secretary for Justice that approximately 75 people have been given discretionary life sentences in the past six years. The important point to note is that such people could become eligible for parole earlier than prisoners who have been given determinate sentences for like crimes. That comparison is important. However, as the cabinet secretary confirmed, that has posed no risk to the public, because the requirement to satisfy the Parole Board for Scotland about safety has remained.

Given that, people might say, “So what?” and ask whether the issue is important. It is extremely important. We have heard about the sort of crimes that draw a life sentence—they include murder and a few others. Courts must have the discretion to impose significant penalties. Non-mandatory life sentences and orders for lifelong restriction are given to the most dangerous offenders, who will be subject to varying degrees of monitoring and supervisory regimes for the remainder of their lives.

A recipient is given a non-mandatory life sentence not as a more severe punishment for their crime or offence but because the judge believes that they are likely to pose a high risk to public safety in the future. Persons who do not pose a high risk would receive a fixed determinate sentence. Given that, the fact that someone who is deemed to pose a risk to the public and who has been sentenced accordingly can be eligible for release ahead of someone who has received a fixed sentence for a similar crime is clearly wrong. The committee heard no evidence to the contrary on that.

We have heard that the Petch and Foye ruling removed judicial discretion. Part 1 will return that discretion and reduce the risk that decisions will be overturned on appeal.

Perhaps predictably, Mr McLetchie brought up sentencing law. A rewrite is not required. The bill is a specific response to a specific problem. As we have heard, it draws on ECHR, domestic law and the framework of existing legislation. The committee supported the aims of part 1.

I will try to outline a very simple version of the solution; it will not be as complex as the convener’s explanation. ECHR laws decree that non-mandatory life sentences are different from other types of sentences because, as we have heard, they are imposed by courts based on the assessed risk to public safety. The bill addresses the problem through providing a framework for the court to set the punishment part of non-mandatory life sentences.

The court must first assess the period of imprisonment that it considers would have been appropriate for the offence had the prisoner not been sentenced to life imprisonment or been the subject of an order for lifelong restriction. That period of imprisonment must ignore any period of confinement that may be necessary for the protection of the public. The court must then assess the part of that period of imprisonment that would represent an appropriate period to satisfy the requirements of retribution and deterrence—I do not think that we have heard those terms in the debate, but they are a component part of the sentencing regime in Scotland. The bill requires that that part of the period of imprisonment, which will be the punishment part, is to be either one half or a greater portion of that period specified, up to the entire period of imprisonment.

That is where judicial discretion kicks in, because between 50 and 100 per cent can be levied, provided that certain criteria are satisfied. The criteria, which exist already, relate to the seriousness of the offence or the offence being combined with other offences of which the prisoner is convicted on the same indictment, the offence being committed when the prisoner was serving a period of imprisonment for another offence and, understandably, any previous convictions.

The situation arises out of an anomaly—no one is to blame for it. Part 1 of the bill will remedy the problem and should enjoy full support.

I do not think that victims needs to understand the minutiae of sentencing law. They receive support from the Crown Office and Procurator Fiscal Service and from the victim information and advice service. We can all look forward to the implications of the bill and, more important, to the victims and witnesses bill that will be introduced in the future.

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