Hansard

There is little doubt that the criminal justice system in Scotland is in desperate need of reform. The aspect of that system that the bill seeks to address—sentencing—is a contentious issue, but I think that we will find near-unanimous support in the chamber for the ending of the automatic release of the sort of offenders who are covered by the bill’s provisions.

That does not mean that the legislation and the Scottish Government’s overall approach to sentencing have been a straightforward process. That the Scottish Government attempted to squeeze the content of this important bill into a previous bill is regrettable, but we should be grateful that it listened to the recommendations of the Justice Committee to place it in a free-standing piece of legislation.

We should first examine the recent past. Scottish Labour introduced an innovative form of judicial disposal in 2007. The introduction, in the Custodial Sentences and Weapons (Scotland) Act 2007, of sentences that would comprise a custodial part plus a community part was welcomed by many in the criminal justice community as a sound and well-thought-through measure. The Scottish Government chose not to put those proposals into practice, however. In fact, it chose to heavily amend the disposals in the Criminal Justice and Licensing (Scotland) Act 2010. The new proposals have never been implemented by the Scottish Government, but we are now where we are with the bill under consideration.

The bill fails to address what we might regard as the other end of the conversation: sentencing. Scottish Labour agrees entirely with victim support groups that there needs to be clarity in sentencing. Victims, the community and offenders need to understand what the sentence that has been passed by the judge or sheriff means in practice. It is not good enough for victims of crime and their families to hear that someone is sentenced to X number of years in prison but to have no idea what that means in reality. Victims and their families should be at the centre of the criminal justice system, but the current system of sentencing fails to put them there.

The bill may increase the confusion about sentencing, however. Victim Support Scotland noted in its submission that

“ending automatic early release for only some categories of prisoners would work to further complicate an already confusing system; the proposals would in fact create another rule that needs to be taken into account when calculating the release date of an offender.”

The introduction of the Scottish sentencing council was an important development in this regard. After a recommendation by the Scottish sentencing committee, which used to advise the Scottish Government on its approach to punishment and sentencing, the 2010 act provided for the Scottish sentencing council to be set up. Its stated aim is to foster greater consistency and transparency in the decisions of the courts by the creation of an appropriate framework to promote fairness and justice in sentencing. Its statutory objectives are to

“promote consistency in sentencing practice ... assist the development of policy in relation to sentencing ... and promote greater awareness and understanding of sentencing policy and practice.”

Those are all laudable and sensible objectives.

I welcome the position indicated by Lord Carloway, the chair of the council, that it will seek to take an evidence-based approach to sentencing. I am also pleased that it will reserve a position for victims’ representatives. It is important that the Scottish people have confidence in the court system and the punishments that it apportions to offenders. It is also important that we commit ourselves to doing what works. The sentencing council will provide an opportunity for a wider range of voices to be heard in the sentencing process and will make clearer to the general public the principles and policies that motivate our judges, sheriffs, stipendiary magistrates and justices of the peace when deciding on disposals.

Those are all important tasks. It is surprising and worrying, therefore, that the Scottish Government has dragged its feet for almost five years on setting up the sentencing council. The clarity and certainty on sentencing that the council will provide is desirable and necessary now.

The provision in section 2 that allows prisoners who are due to be released on Fridays to be released two days earlier in order to increase the provision of support for them is a good one. It may appear to some as a small change but, according to the Scottish Prison Service, around 4,000 prisoners are released every year on Fridays. They emerge at the weekends with limited support. We do too little to help offenders back into the community once they have served their time and that modest proposal will at least make some provision to increase the support and guidance that they receive.

At the heart of any structure surrounding the release of prisoners must be the calculation of risk to public safety. It is notoriously difficult to calculate, and it would be wholly unreasonable for us to expect the relevant authorities to calculate successfully the risk of reoffending every time they are called on to do so, but we must ensure that each offender’s risk profile is central to the debate on whether they are released early. For those who commit serious offences, it should not be an automatic process.

I agree with Victim Support Scotland and Police Scotland, which have indicated that they support the essence of the proposals because they will encourage relevant prisoners to engage with prison rehabilitation programmes and will ensure that prisoners who are assessed as still posing a high risk do not benefit from early release.

I also agree with the Howard League and other experts who have noted that an unintended consequence of the bill would be that prisoners are released cold into the community without a period of supervision from relevant authorities. As the Howard League put it in its submission,

“The current proposal fails to recognise the strong evidence that support and supervision in the community is more effective in reducing re-offending rates than time spent in custody. ... An abrupt and unsupported transition of a prisoner from the structured environment of prison to non-parole release may, in many instances, result in a reversion to pre-sentence behaviour.”

To mitigate the problem, some have suggested the extension of the MAPPA approach to violent offenders. That is an interesting proposal, but it is not good enough that we have no concrete plan on the issue. We are talking about some of the most serious offenders in Scotland’s prisons. We need more specificity when discussing their rehabilitation.

There is more that is vague than just the content of the supervision. How long will there need to be supervision, and will it be pre-release or post-release? Moreover, why has the Scottish Government produced a human rights impact statement accompanying the bill that the Scottish Human Rights Commission has described as “simply not adequate”? That, coupled with the aforementioned vagueness, means that offenders who have been refused release could make a human rights challenge if they have not been offered the necessary rehabilitation programmes.

I hope that the Scottish Government ensures that those comments are addressed as the bill is taken forward.