Hansard

I thank the clerks and the witnesses for their efforts in bringing a lot of issues to the committee’s attention during the stage 1 process.

The Scottish National Party manifesto in 2011 stated that the party would

“remain committed to ending automatic early release once the criteria set by the McLeish Commission are met.”

However, we must be clear about the fact that the bill does not end automatic early release. As introduced, it would have affected 1 per cent of offenders; with the suggested amendments, it will affect 3 per cent of offenders. The vast majority of offenders, and perceptions of sentencing among the vast majority of victims of crime, will not be affected by the bill even as amended.

Of people receiving a custodial sentence in 2012-13, 317 offenders were serving sentences of more than four years; 47 were serving life or indeterminate sentences; and 14,084 were given short-term sentences of less than four years. The offenders who are serving short-term sentences will still be released after serving one half of the sentence and—other than sex offenders who are serving six months or more—they will not be subject to supervision by criminal justice social work.

In 2011-12, the reconviction rate for offenders serving between three and six months was 53 per cent, whereas the rate for prisoners serving more than four years was 13 per cent.

The Scottish Government is not making much progress in achieving the reduction in prison population that was recommended by the McLeish commission. The cabinet secretary cited some figures today; however, the prison population statistics go up and down. In 2011-12, for example, there was an increase in the average prison population of 4 per cent over the previous year; a 9 per cent increase in those on remand; and a 3 per cent increase in the sentenced population, with a projection—from the Scottish Government’s own figures—that the average prison population would increase to 9,500 by 2020-21. It does not look as if automatic early release will be ended in the near future or even in the medium term.

The policy memorandum to the bill states that its provisions will improve public safety, but the extent to which they will do that is debatable given that the bill legislates for the cohort of prisoners with the lowest reconviction rates. Obviously, those offenders have been convicted for much more serious crimes, and therefore their reoffending could be more dangerous.

However, Dr Monica Barry of the University of Strathclyde told the committee when giving evidence on the original bill that

“sex offenders are the most compliant of ex-prisoners you will find.”—[Official Report, Justice Committee, 13 January 2015; c 2.]

The Risk Management Authority Scotland agreed, based on Parole Board for Scotland statistics, and suggested in written evidence that the bill should refocus on

“risk of serious harm rather than offence type.”

Dr Barry also advised the committee:

“If the Government is piloting this with high-risk violent offenders and sex offenders, it is probably piloting it with the wrong people. If it is going to abolish early release, it should be going for the lower end, such as dangerous driving, which is probably a higher risk to the public than sex offenders, or common street crimes such as shoplifting, theft or breach of the peace.”—[Official Report, Justice Committee, 13 January 2015; c 6.]

One of the major concerns over the bill as drafted was that violent offenders who did not qualify for early release would be released into the community cold, with no supervision. Sex offenders are subject to the multi-agency public protection arrangements—or MAPPA—with regard to the risk that they pose on release, but although legislation permits those arrangements to be extended to violent offenders, the provisions have not yet been commenced.

There was not much to recommend the bill as drafted. Rather than improving public safety, it could have jeopardised public safety by releasing dangerous unreformed violent offenders into the community without supervision. It also singled out sex offenders serving long-term sentences, who the committee was advised are less likely to reoffend.

The Cabinet Secretary for Justice is to be commended for listening to the evidence of witnesses and subsequently proposing amendments that will extend the ending of automatic early release to all long-term prisoners and—importantly—ensure that all such prisoners are subject to supervision on release, including when they have served the full term of the sentence. However, without seeing the amendments, it is difficult to comment much further, other than to welcome the cabinet secretary’s recognition that the original bill was seriously flawed.

To what extent will the amended bill equate to a partial introduction of the provisions of the Custodial Sentences and Weapons (Scotland) Act 2007, as amended by the Criminal Justice and Licensing (Scotland) Act 2010, in introducing for long-term prisoners sentences that are composed of a part that must be served in custody and a part that will be served under supervision in the community? Witnesses in the final evidence session, which took place after the cabinet secretary had written to the committee on his intentions to amend the bill, were unclear whether the cabinet secretary was proposing to add compulsory supervision to sentences that had already been completed in custody, or the provision of compulsory supervision in the community as part of the original sentence. According to Dr Barry and Professor Fergus McNeill, the former would amount to a type of new sentence.

Scottish Labour agrees that there should be clarity in sentencing and that victims, the community and offenders should understand what the imposed sentence means in practice. Unfortunately, as things stand, it is not clear how that will be achieved. Moreover, it will be achieved only for victims of a small number of albeit serious offences.

Several witnesses expressed concerns that the bill addresses only back-door sentencing—the release arrangements—and does not consider front-door sentencing, or sending people to prison in the first place. The Howard League Scotland, Professor McNeill and Professor Tata suggested that the work of the Scottish sentencing council—which will, we understand, be set up at long last in October this year—is being pre-empted by the bill. Professor Tata told the committee:

“One of the beauties of such a body is that it can be a buffer between the judiciary, the parole board, the SPS, social work and other parts of the system that are trying to do their job and, if you like, penal populism. It can take the heat out of the situation. If a case is given to the sentencing council to be looked at, that immediately takes it away from the control of ministers and the political pressures that they are under.”—[Official Report, Justice Committee, 20 January 2015; c 9.]

We are all under those pressures, too, of course.

There are significant human rights concerns, as Christine Grahame has already said. Professor Alan Miller described the human rights impact statement as “not adequate”, and he had particular concerns about offenders’ rights if they are refused early release by the Parole Board for Scotland under circumstances in which rehabilitation programmes that may have made them eligible have not been available.

An answer that my colleague Graeme Pearson received last month revealed that, of the 900 sex offenders who were in custody, 120 had completed or were undergoing the moving forward: making changes sex offender programme and 150 offenders had been assessed as potentially benefiting from the programme. The answer that the chief executive of the Scottish Prison Service, Colin McConnell, provided said that they

“may proceed to do so according to their case management plan, their continued motivation and”—

this is important—

“as resources allow”.

He also said that 100 offenders had refused treatment.

The chief executive of the Scottish Prison Service spoke to the committee about the difference between wants and needs. That answer says that 150 sex offenders have been assessed as potentially benefiting from the programme, but they may get it only if resources allow. If any of those offenders is refused early release because they have not been able to access the MFMC programme because of a lack of resource, they may well have a human rights challenge. That really needs to be looked at.

As the cabinet secretary and Christine Grahame have said, section 2, which introduces early release for community reintegration, was welcomed by all the witnesses and, indeed, all the members of the committee, as it was seen that that would be of benefit to prisoners who may be released at the weekend without adequate services being in place for them after release.

The decision to substantially amend the bill at stage 2 means that neither the policy memorandum nor the financial memorandum is now accurate. We believe that, once the cabinet secretary has decided on the exact form of his amendments at stage 2, it will be necessary to issue supplementary memorandums that reflect the significant changes in the bill.

Had the cabinet secretary not indicated that he was prepared to amend the bill at stage 2, Scottish Labour would have voted against the bill as drafted. It would have ended automatic early release for a very small number of offenders—only 1 per cent—and would have had the unintended consequence of releasing dangerous, unreformed offenders cold into the community without supervision at the end of their sentence. Their automatic early release would have been withdrawn, but potentially they could have been of greater danger to the public at the point of release.

The original plan, of course, was to introduce the provisions as stage 2 amendments to the Criminal Justice (Scotland) Bill, which, as we know, is suspended pending the Bonomy review of any safeguards that are required by the abolition of the requirement for corroboration. Thankfully, that did not happen, because if the proposals had been brought in by way of stage 2 amendment to the Criminal Justice (Scotland) Bill, they would not have been subject to the degree of scrutiny that has been applied to the Prisoners (Control of Release) (Scotland) Bill. That scrutiny resulted in the current cabinet secretary listening to the concerns of witnesses and indicating that he was prepared to substantially amend the bill.

As the cabinet secretary has done that, we will support the bill at stage 1. We do not yet know what the amendments will be, or whether and how they will adequately address the points that witnesses made to the committee. Those are matters for discussion at stage 2 and stage 3, and we will come to our conclusions at those stages.

Scottish Labour wants to go further than the bill does on sentencing policy and on the transparency of sentencing. Even with the proposed amendments, the bill will not be enough, but we are prepared to give the Government the benefit of the doubt and to support the bill at decision time in the hope that, once it has been amended at stage 2, it will achieve—albeit to a limited extent—a better outcome than the current situation.