Hansard

Amendments 88 and 89 seek to amend new section 210B of the Criminal Procedure (Scotland) Act 1995 as inserted by section 1 of the bill. Amendment 88 seeks to qualify the definition in new section 210B of"an offence which endangers life"so that the offence is one that is "committed wilfully or recklessly". With the committee's permission, I will explain why we do not think that that qualification is required.The range of offences in new section 210B is entirely consistent with the recommendation of the MacLean committee, which stated that the new order for lifelong restriction sentence should be available where the offender is convicted of a violent, sexual or other offence that is closely related to, or reflects the offender's propensity for, violent, sexual or life-endangering offending. When we consider the range of offences, it is important to bear in mind the fact that it is not the conviction of one or more of those offences that of itself triggers the risk assessment process. The offender first must be convicted of such an offence, but before the court can make a risk assessment order, or an interim hospital order under new section 210D, it must be satisfied that the offender may—I stress that word—meet the risk criteria. If the court is not satisfied that the risk criteria may be met, it will proceed to sentence the offender using any other appropriate disposal available to it for the violent, sexual or life-endangering offence. Therefore, it is the combination of the offence and the risk criteria—which the committee quite rightly drew attention to and asked to be examined carefully—that is important, not the single issue of the offence.As members have indicated, the committee recognised in its stage 1 report that the range of offences that could potentially qualify an offender for a risk assessment is broad. It was accepted that it may be appropriate to have such a relatively broad entry point into the risk assessment process so long as the risk assessment process is as robust as possible. I stress again that the Executive is confident that the provisions in part 1 of the bill provide such a robust process.On the point of amendment 88, as the MacLean report indicated, the primary concern is the risk that the offender may pose to the public, rather than the specific offence of which they have been convicted. The Executive's intention has never been that all offenders with whom the High Court deals will be the subject of a risk assessment order. Similarly, the process is designed to ensure that not all those who get a risk assessment order will meet the criteria for an order for lifelong restriction. That is exactly as it should be.The requirement is that the offender must first be convicted of a specified offence, which would include an offence that endangers life wilfully or recklessly. The court must then consider, before making a risk assessment order, whether the offender may meet the risk criteria. I will deal with the non-wilful and reckless example that Duncan Hamilton gave of a practical joke. If someone endangered life by practical joking and made a habit of it, it may be appropriate for a risk assessment to be undertaken. However—in response to Bill Aitken's point—a risk assessment would certainly not arise out of a health and safety issue. That just would not occur. Both those points can be satisfied. I stress again that both requirements—in relation to the offence and the risk criteria—must be satisfied before the court can make a risk assessment order.Amendment 89 would do two things. First, it seeks to give the court discretion as to whether to make an order for a risk assessment even where it considers that the risk criteria may be met. Secondly, it seeks to give the offender the right to make representations against a motion by the Crown for a risk assessment order. The second point was dealt with in the Executive's response to the committee's stage 1 report. During the stage 1 debate, the Deputy First Minister said:"I also confirm that the defence has a right to challenge any motion made by the Crown during criminal proceedings and that that will include in the future any motion made by the Crown for a risk assessment order. There is therefore no need to make express provision for that in the bill."—Official Report, 18 September 2002; c 13794.I hope that that deals with that aspect of amendment 89.The process that the first aspect of amendment 89 seeks to alter is a direct reflection of the arrangements that the MacLean report envisaged would support the OLR sentence. The risk assessment order is therefore part of the process from conviction for a relevant offence to the imposition of an OLR. Throughout the stages of the process, checks require to be made and protection is built in so that only the highest-risk serious violent and sexual offenders are sentenced to what is a lifetime sentence.Where the court considers that the statutory risk criteria may be met and following a motion from the Crown—taking account of any representations from the defence—or of its own accord, the court shall make a risk assessment order. Once the order is made, the offender will be subject to a formal risk assessment carried out in accordance with statutory processes. The court will consider the risk assessment report that is prepared under the order, along with other relevant material available to it, and will conclude whether the offender is high risk when measured against the statutory criteria for the OLR. If the offender is considered high risk against those criteria, the court must sentence that offender to an OLR. The effect of amendment 89 would be that, even if the court were satisfied that the risk criteria may be met, it would not be required to make a risk assessment order. If the court did not make a risk assessment order, the rest of the process would fall and a potentially high-risk offender could not be given an OLR. The objective of enhancing the protection of the public from such dangerous offenders would be lost. The committee may wish to note that, when consulted on the proposals, the judiciary raised no objections to the mandatory requirements of the RAO provisions. Of equal importance is the fact that we have ensured that the rights of the offender are safeguarded in the new provisions.I am sorry that I have gone on at such length, but the committee was clearly concerned about that point in its stage 1 report. In light of what I have said, I ask Duncan Hamilton to withdraw amendment 88.