Skip to content

Parliamentary Report for the 9th – 13th November, 2009

2009 November 18
by Mary Munro

Image © Scottish Parliamentary Corporate Body - 2011

This week saw the publication of the Justice Committee’s report into the Criminal Justice and Licensing Bill, which did support its ‘general principles‘, although did not fully endorse several of its key proposals. The Equal Opportunities Committee also published their inquiry into Females in the Justice System, which recommended, amongst other things, more female specific provisions for women in prisons. And in the Chamber, there were questions for the Law and Justice Officers.

The Justice Committee’s Stage 1 Report on the Criminal Justice and Licensing Bill

On Thursday the Committee published its long awaited Stage 1 report on the Criminal Justice and Licensing Bill. This is a crucial part of the legislative process: in order for the Bill to proceed though Parliament, its general principles must be recommended by Committee at Stage 1. The Bill will then be debated by the whole Chamber to conclude Stage 1, and then the finer details are debated and ironed out during Stages 2 and 3.

The Bill is a very significant piece of legislation, more than making up for the paucity of criminal justice legislation under this Administration during its first two years. It contains a wide range of provisions, some of which have attracted significant controversy, including the proposals to establish a sentencing council and a presumption against short custodial sentences. Other less controversial proposals relate to alcohol licensing, disclosure of evidence during trail, the prosecution of children, the upper age of jurors, serious and organised crime and people trafficking, and community sentences. Consideration of the Bill by the Committee has taken a considerable amount of time as well; they first called for evidence in March this year, and since then have received over 90 submissions and taken oral evidence over 8 meetings.

As always, the political make up of the Committee played a key role in determining which parts of the Bill where agreed to and which were not. The Committee is chaired by the Conservative Bill Aitken, other Members are: 3 Labour MSPs, 2 Liberal Democrats MSPs, and 2 SNP Members. The Convenor has the casting vote if it is needed.

The Committee agreed with the ‘general principles’ of the Bill, which means it can continue its journey through Parliament. However, the Committee noted difficulties with several areas which the Parliament expects the Government to take cognisance of and modify at Stage 2.

Key recommendations in the committee’s report

Purposes and principles of sentencing

The Committee rejected the proposals that the ‘purposes and principles of sentencing’ be enshrined in statute. They argued that the purposes and principles as enshrined under Common Law are already well understood by the courts, and that this should not be fixed in statute given that the common law has the advantage of evolving and developing as society changes.

The Scottish Sentencing Council

Proposals for a sentencing council were amongst the most controversial elements included in the Bill, and there was vigorous debate during evidence to the Committee on the issue. The proposals in the Bill would create a council which would prepare and publish sentencing guidelines which would include detailing particular types and levels of sentences that are suitable for particular offences. The guidelines would also include an assessment of the relevant costs and benefits and the likely effects of the sentence on the number of people serving sentences in prison and the community.

The Committee agreed that there was merit overall in the creation of a Sentencing Council, although they were uneasy about its aim of creating consistent sentencing. The report said that although the perception of inconsistent sentencing was problematic, this could not be addressed in this way without compromising other important principles of justice. They accepted however, that there may be a case for the setting of guidelines for sentencers, and that the Council would have some influence over judicial discretion, but they were divided about how the guidelines would be formulated and practised. Some of the Committee thought that guidelines should only take effect after formal endorsement by the Appeal Court, and they also thought that the Council should have a judicial majority on it. The Committee regarded the safeguards in the Bill, namely that any court can decide not to follow a sentencing guideline so long as it states its reason for doing so, as essential, and the minimum necessary to preserve judicial independence.

Community payback orders

The Committee were ‘broadly supportive’ of the creation of the all encompassing new community penalty – the ‘community payback order’ (CPO). The Committee thought that CPOs would simplify and strengthen the current range of community sentences, but they were sceptical that there were sufficient resources at this time or in the near future to make sure they could be adequately resourced. The report said that in order to move offenders from the prison to the community, sentencers must have confidence in the community alternative, but this would only happen if the new CPOs are adequately resourced, and it would be a substantial amount of time before any money was released from the prison budget, should a decrease in the prison population even come about. The Committee did also note however, that if the prison population continued on its current rising trend, this would also cost money, because new prison places would be required. The Committee also recommended that community penalties begin ‘very shortly after sentence is declared’, although they queried once again, whether there were sufficient resources in place for this to happen.

The Committee also did not agree with those witnesses who argued that progress courts should have been established as specialist courts, as the Prisons Commission recommended. They thought that this should be a matter for individual sentencers to consider in the light of local circumstances.

Presumption against short periods of imprisonment or detention

Another section of the Bill to attract widespread controversy were the proposals which sought to introduce a ‘presumption’ against prison sentences of six months and under, although as before, if sentencers wished to opt out of this, they would be able to, as long as they stated their reasons for doing so in court. Most witnesses to the Committee agreed that short prison sentenced do little in the way of rehabilitation, and were broadly supportive of the Bill’s proposals, although some thought that there should be a limited number of 6 month sentences available to sentencers, and others voiced concern that this could lead to a greater number of longer sentences being imposed.

The Committee could not reach agreement about these proposals, and the deciding vote, taken by the Convenor, rejected them. Their report acknowledged all the limitations of short terms in prison that the witnesses reported, but the Committee could not agree whether these sanctions were currently being overused, or whether they should continue to be regarded as an appropriate disposal. Some members of the Committee agreed that short sentences involve only a ‘warehousing’ of offenders and provide no real opportunity to engage them in programmes to tackle their offending behaviour or address their other problems, while others thought that prison could still have a useful effect in persuading an offender to change their behaviour. They also questioned whether short–term sentences are currently given out where better alternatives exist, and therefore doubted that a statutory presumption would make any real difference anyway. One Committee member thought that a three month threshold should be introduced initially, and this would focus on cases which were least likely to involve serious or violent offences.

Amendment of the Custodial Sentences and Weapons (Scotland) Act 2007

The Custodial Sentences and Weapons Act 2007 has yet to be fully implemented, because the Government believes it would place too high a burden on the SPS and Local Authorities, given that it would significantly increase the number of prisoners who would be subject to supervision and assessment requirements. Part of the Criminal Justice and Licensing Bill therefore seeks to modify the existing Act. The Committee agreed that the Bill represented some improvement on the current law, as it will result in more prisoners being subject to statutory supervision on release and fewer to automatic unconditional early release, while avoiding the more burdensome requirements of the 2007 Act.

Voluntary intoxication by alcohol – effect in sentencing

The Committee agreed that voluntary intoxication should not be a mitigating factor in criminal trials, but thought it was unnecessary to enshrine this in statute, given that most sentencers already adhere to this principle and also because of the confusion a statutory definition may cause.

Serious organised crime

The provisions in this part of the Bill come from recommendations by the Serious Organised Crime Taskforce. The Bill seeks to create three new offences: the involvement in serious organised crime; directing serious organised crime; and failure to report serious organised crime. It also seeks to create a statutory aggravation ‘where an offence can be proved to have been connected with serious organised crime.’ The Government claimed that although the current common law of conspiracy can be used to prosecute these crimes, and a tighter definition was now needed in statute to make prosecution in this difficult area easier.

Although the Committee ‘strongly supported’ the intentions of this part of the Bill, they were unsure whether the proposals contained in it would achieve the results it is seeking to. They voiced some uncertainty about some of the definitions used, although they supported the introduction of the new statutory offences. They also voiced concerns about the proposals which would prosecute an individual if they failed to report serious and organised crime, saying there may on occasion be good reason why they did not do so and it would be difficult to know how wide to cast the net with regards to those who might know about these crimes.

Extreme pornography

Once again, the Committee agreed with the intentions of the Bill, namely to protect the public from extreme pornography, but it had concerns over the details. For example, they recommended that the definition of what constitutes an ‘extreme image’ should be clarified, and whether ‘realistic’ definitions of acts cold also include cartoons or other images which have been distorted.

People Trafficking

The Committee welcomed the provisions on people trafficking, but wanted further clarification from the Government about what else it is doing to tackle this crime, not least given that there have not so far been any convictions particularly in view of the absence so far of convictions for sexual exploitation under the Criminal Justice (Scotland) Act 2003, which makes it an offence to engage in trafficking for the purposes of prostitution.

Prosecution of children

The Bill finally changes the law so children under the age of 12 cannot be prosecuted in criminal courts, bringing Scotland into line with recommendations of the UN Committee on the Rights of the Child. However, the Committee wanted assurances from the Government that there would continue to be a sufficient range of disposals available within the children’s hearings system for children under 12 who ‘sometimes do terrible things’.

Retention and use of samples

The Bill extends the powers of the police to keep forensic (primarily, DNA and fingerprint) data in a way that is consistent with the European Convention on Human Rights. Currently, where a person has been convicted of any offence, their forensic data can be held indefinitely, and in the cases of people who have been proceeded against, but not convicted in court, their DNA can be retained for a period of up to three years. The Bill would bring the law on the retention of fingerprints and other forensic data into line with current law on DNA retention, and would also allow the retention of forensic data taken from children who are dealt with the children’s hearing system for committing relevant violent or sexual offences, again for a period of three years with the possibility of subsequent extensions of up to two years if authorised by a sheriff.

The Committee were uncomfortable about whether the Bill should be extended to cover forensic data taken from people who are then offered alternatives to prosecution. Regarding the retention of forensic data taken from children referred to a Children’s Hearing, although they were in favour of these proposals, they wanted more clarification over what sexual or violent offences would prompt this. And they suggested that retention should only be allowed on application to a sheriff.

Upper age limit for jurors

The Committee supported the Bill’s provisions to increase the upper age of jurors from 65 to 70, thereby bringing Scotland in line with the rest of the UK.

The Committee’s report also contained provisions relating to disclosure and evidence in trials, and licensing, which are not covered here, but which you can read more about below.

Equal Opportunities Committee Report into Female Offenders in the Criminal Justice System

The other report relating to criminal justice to be published this week was the culmination of the Equal Opportunities Committee’s inquiry into female offenders in the justice system. The Committee launched this report in December last year after being persuaded that the experiences of female offenders merited particular attention in an equal opportunities context, because of the different ways that female offenders, as opposed to men, enter the criminal justice system and are subsequently treated.

The main findings of the report are as follows:

  • There are too many women in prison with mental health problems who do not pose a threat to society, but who are a threat to themselves. The way that women with mental health problems are sentenced by the courts should therefore be re-examined.
  • More could and should be done to rehabilitate women in prison, particularly those serving short-term sentences and those on remand.
  • Around half the children of female prisoners may end up in prison themselves. They must be given more support because children are the innocent victims when their mothers are sent to prison.
  • More could and should be done to stop drugs circulating in Cornton Vale, but children should not be punished by having their visits cancelled if their mothers are caught taking drugs.
  • Women are often sentenced more harshly than men for the same crime, and the Committee wanted information from the Government to know what it was doing to address this issue.
  • There should be more female–appropriate community sentences and these should be better funded. The report was very favourable of the 218 Centre in Glasgow and recommended that this should be replicated on a wider basis and should also be available to women who are at risk of committing crime as well.
  • The development of throughcare is welcome, but it should be better co-ordinated.
  • The Committee was critical that ex–offenders with a conviction related to prostitution may have to reveal their conviction to certain prospective employers.

The report also states that many parts of the Criminal Justice and Licensing Bill are relevant to the issues raised in this report, and called the Parliament and the Government would consider the Bill in this context.

The Justice Committee

The Justice Committee welcomed a new Committee Member in its meeting on Tuesday. James Kelly (Lab) has replace Paul Martin (Lab) as Labour’s shadow community safety spokesperson. Mr Martin has resigned from the Committee in order to ‘take up other parliamentary responsibilities’. Once again, a great deal of the Committee’s meeting was spent in private, considering their final draft of their Stage 1 report on the Criminal Justice and Licensing Bill, see above, and their report on the draft Budget Bill for the Finance Committee. Before that however, they also considered two items of subordinate legislation, which they noted without comment.

The Chamber

General Questions

Gender Violence

Johann Lamont (Lab), who often speaks in the Chamber on gender issues, asked the Minister for Housing and Communities, Alex Neil, about the annual ‘16 days of activism against gender violence’ campaign. This is a global campaign which seeks to connect gender violence with human rights and it begins on the 25th of November, which is the International Day Against Violence Against Women. She said that although important work has been done on this issue, it was important not to become complacent given the continuing scale and impact of domestic abuse on individuals, families, public services and our economic and social wellbeing. She also wanted to know whether the Government would address how violence against women can be tackled in order to address the broader issues of the gender gap in workplaces.

The Minister replied that the 16 days campaign was an important time of year and that the Parliament will hold a debate to mark the beginning of the event which will be on the same theme as the 16 days of action: ‘commit, act, demand: we can end violence against women.’ He also said that he and the national group on violence against women, which he chairs, would be happy to discuss the other points raised by Ms Lamont further with her.

You can read this question in the Official Report and read more about the campaign on the 16 days against gender violence homepage

Questions to the Law and Justice Officers

Length of criminal appeals

Pauline McNeill (Lab) asked the Solicitor General for Scotland, Frank Mulholland, what the Government was going to do about the length of criminal appeals, given that recent statistics show there has been a 34% increase in the duration of solemn appeals. She argued that this increase could damage the Scottish legal system, and she questioned whether additional judges could be hired in order to help alleviate the situation. The Solicitor General replied that 79% of appeals were concluded within 6 months, and that the number of lengthy and complex appeals has increased significantly and that several of these have been full-bench cases, which occupy multiple judges in one sitting. He said that the judiciary are aware of this issue and are already beginning to address it through a number of measures which he was confident about would begin to bear fruit in the near future.

Mandatory sentences for knife crime

Helen Eadie (Lab) raised the case of someone who was murdered with a knife in her constituency after intervening to try and calm a violent situation down. She said that it was time the Parliament sent the message out that ‘if you carry a knife you go to jail.’ The Justice Secretary gave his condolences to the bereaved family in the case Ms Eadie raised, but he said that he sided with the Chief Constable of Strathclyde and the Superintendent in charge of the violence reduction unit, who said the best way to tackle knife crime was through measures such as education and improving the apprehension of people who were carrying. He said that anyone caught carrying a knife would almost certainly be sentenced to a custodial sentence anyway, and that these things should be left at the discretion of the judiciary.

During a supplementary question, Bill Aitken argued that all efforts to tackle knife crime would be defeated by the Government’s proposals of a presumption against sentences of less than 6 months and the fact that many people who are sent to prison are released after only a quarter of their sentence. The Cabinet Secretary replied firstly that automatic early release was established by the Conservative Government and he then went on to give a rather mixed confused answer that although he believed in the judiciary’s right to make decisions, and that in some instances when a Sheriff thinks that a short sentence may be appropriate, for example in cases of domestic abuse, they had the Government’s full support. However, he also believed that short sentences do not work in reducing reoffending.

The Monitoring of Sex Offenders

John Lamont (Con) asked the Cabinet Secretary what steps are being taken to improve the management of sex offenders. He said that the Government should reconsider an earlier statement which said they were opposed to using satellite tracking for monitoring offenders, saying that this could actually have a number of benefits, such as identifying if an individual is in the vicinity of a school or similar establishment. He also wanted to know why the budget for the monitoring of sex offenders been cut by £21,000.

The Cabinet Secretary replied that regarding satellite technology, he was not ruling anything in or out at this stage, although he pointed out that because the police are not convinced that it could prove effective, it was unlikely to become policy. However, he said that the Government are continually looking at evidence from elsewhere and if some measures proved to be cost effective, he was happy to consider adopting it. Regarding the sex offender budget decrease, he said that this is because sex offenders are increasingly monitored using different methods that do not all come through the criminal justice directorate such as housing or social work.

Antisocial Behaviour etc (Scotland) Act 2004

John Park (Lab) asked if the Government would intervene to make councils use the full range of powers available to them to tackle antisocial behaviour. He argued that the council in Fife do not use the existing legislation, and that he frequently receives correspondence about antisocial behaviour between neighbours which could be tackled using some of these measures. The Minister for Community Safety replied that although it was a matter for local authorities whether to use the powers of the Antisocial Behaviour etc (Scotland) Act 2004 and the Government would not impose on that decision, he would be happy to look at the examples that Mr Park mentioned.

Joint Thematic Report on the Proceeds of Crime Act 2002

The recent report which said that the Proceeds of Crime Act was not being fully exploited was raised by Elizabeth Smith (Con), and she asked whether the 2002 Act could be amended so that the onus was on the criminal rather than the Crown to demonstrate that their assets had not been obtained as a result of criminality. The Cabinet Secretary replied that in these cases it is in fact up to the individual to show that an asset was from a legitimate source, and that ways of improving recovering are always being kept under review. In a supplementary question, Richard Baker (Lab) wanted to know whether any discussions had been had with police forces about holding back some of the seized funds in order to give them to forces as an incentivisation policy. The Secretary replied that seized money under this legislation had already recently been given to ACPOS.

Criminal Activity (CCTV)

Finally, Ken Macintosh (Lab) said that the previous Executive made funds available to Scotland’s ethnic communities to install CCTV at places of worship, which resulted in their peace of mind and improved security, and he queried whether the current Government would consider giving a further grant to these communities for the same purpose. The Minister for Community Safety replied that CCTV can play a significant role in the prevention, detection and prosecution of crime. However, the fund that Mr Macintosh referred to was set up after the events of 11 September 2001 and it has now been fully utilised, although issues would continue to be kept under consideration.

Comments are closed.