Hansard

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”, because there is no doubt that if he found part 1 easy to understand, it would be a fascinating book to read.

The Criminal Cases (Punishment and Review) (Scotland) Bill is one piece of legislation with a title that trips off the tongue. Members who have followed the committee’s deliberations will know the torrid time that we faced together in trying to understand the complexities that are involved in simplifying the process at solemn procedure when judges calculate the punishment part of a non-mandatory life sentence, which is dealt with in part 1.

It is satisfying to note that, nonetheless, the committee came to support the aims of part 1 in seeking to address the anomaly that was identified through Petch and Foye v HM Advocate in 2011, whereby a life prisoner is likely to have a parole hearing earlier than a non-life prisoner who has been sentenced for a similar crime.

During our committee meetings, witnesses said much that evidenced the unsatisfactory nature of current sentencing guidelines; indeed, the cabinet secretary himself acknowledged that the bill was meant to be an immediate fix to the Petch and Foye challenge and did not seek to address the structure of custodial sentencing more broadly. To that extent, the bill is disappointing in its ambitions. I hope that, as was alluded to by the cabinet secretary, the Government will consider further work in a reasonable timescale to address the wider issues affecting sentencing in order to ensure not only that judges can understand the procedures that are involved but—more important—that victims, witnesses and the general public can understand the system. I hope that the cabinet secretary will be able to address that outstanding matter.

I would like to see in the future the delivery of sentences that not only leave no doubt in the mind of the public about how a sentence is arrived at, but which announce the earliest date of release for a prisoner. That will give clarity and some comfort to people who are affected because they will be safe in the knowledge that an offender will not be on the streets in a free capacity before the said date.

Joanna Cherry QC said in her evidence to the committee that

“it is not just lay people who find the legislation extremely difficult to understand ... I am sure that it is an issue for the Parliament that legislation should be readily understandable to the public, particularly legislation to do with ... sentencing ... That is a strong factor in our concern about the bill’s complexity.”—[Official Report, Justice Committee, 31 January 2012; c 865.]

Sir Gerald Gordon QC echoed those sentiments when he acknowledged that even legal experts and members of the judiciary would struggle to understand all the provisions. Michael Meehan added that

“The bill complicates matters by requiring judges not only to consider the sentence that they will impose but to conduct a parallel notional sentence exercise.”—[Official Report, Justice Committee, 31 January 2012; c 866.]

Despite those reservations, I accept the authorities’ need to take steps to respond to the identified problem. In connection with that, I suggest that the cabinet secretary encourage the authorities to draw up an aide mémoire, written in everyday language, that is designed to explain to members of the public who are attending court exactly what the sentencing procedure is and how judges decide sentences. Such documentation would—alongside Victim Support and other agencies—assist people to understand the processes.

With regard to part 2, events in respect of Megrahi have overtaken the import of our discussions on the matter. Part 2 seeks to establish a framework for the Scottish Criminal Cases Review Commission and, as other members have outlined, we have a greater understanding of some of the perceived hurdles and the real pathways forward. Nevertheless, it is troubling to acknowledge that a reporter who is based at The Herald newspaper in Glasgow has greater latitude to manoeuvre to allow publication of a report from the Scottish Criminal Cases Review Commission than is available to the First Minister and his Government.

A subsequent update to legal advice has indicated that previous reservations with regard to data protection and other issues were ill-founded. Although it is difficult to identify a purpose for that part of the bill now, the Government continues to press for its enactment. I well understand, with regard to Christine Grahame’s contribution, the wrecking impact of our committee seeking to interfere with that process.

Nevertheless, it is useful to acknowledge that, during conversations in committee and in taking evidence, Len Murray, who is a highly respected lawyer, said that in his view the bill could create as many difficulties as it might solve, and Ian McKie commented that the current legislation and the bill as drafted would inhibit rather than assist the release of information. Both appeared before the committee as members of the justice for Megrahi campaign. Whatever their view, and the outcome, the SCCRC raised one practical issue regarding its ability to deal with financial costs. I hope that the Government will take account of that observation and respond to it in due course.

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