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Parliamentary Report for the 1st to the 5th June 2009

Wednesday, June 10, 2009

At Holyrood the Justice Committee held another interesting evidence session as part of its scrutiny of the Criminal Justice and Licensing Bill, and the Equal Opportunities Committee heard from more witnesses as part of its inquiry into females in the justice system. In the Chamber, the issue of the First Minister’s handling of the information surrounding the latest escape from the open escape, continued to dominate FMQs, and there were also questions to the Law and Justice Officers. Finally, Parliament debated and voted through the Offences (Aggravated by Hatred) Bill.

The Justice Committee

Criminal Justice and Licensing Bill: Stage 1

The Committee took further evidence as part of its Stage 1 scrutiny of the Criminal Justice and Licensing Bill.

The first panel of witnesses represented the Law Society of Scotland and the Faculty of Advocates. They were asked about the proposed sentencing council, and they agreed with many of the points which had been made by the Lord Justice General and the Lord Justice Clerk previously, namely that such a council was not necessary and would seriously impinge on the independence of the judiciary. Mr Daguid from the Faculty of Advocates argued that Sheriffs must be able to retain their discretion whilst issuing penalties which are fair and equal, and Bill McVicar from the Law Society argued that there may be cases in which it was necessary ‘in the interest of deterrence’ to hand out a more severe sentence for the same crime. They also answered questions about the parts of the Bill relating to serious and organised crime, saying they had concerns about the way that the Bill is drafted, and that the Bill as it stands may create more problems than it is seeking to solve. They also said that the definition of ‘serious and organised crime’ was so vague that it could potentially be used to prosecute many activities which were not intended to be brought within the scope of the provision.

There were also questions about the provisions in the Bill dealing with disclosure: a framework for the disclosure of evidence from the prosecution to the accused in criminal cases. They said the proposals in the Bill were unnecessarily complicated and had been more or less lifted wholesale from the law in England and Wales, which did not sit easily with the system under Scottish legal procedure. They were also against the proposals in the Bill for witnesses to be able to refer to written statements that they made before the trial, and they said that the definition of ‘insanity’ when it comes to deciding ‘unfitness for trial’ should be broadened.

The next panel of witnesses comprised of Professor Jim Fraser, Director of the Centre for Forensic Science at the University of Strathclyde, who carried out a review last year for the Scottish Government on the system of acquiring and retaining DNA and fingerprint data; and Tom Nelson, Director of Forensic Services with the Scottish Police Services Authority.  The current Scottish law in this area allows for the DNA and fingerprints of someone to be kept indefinitely if they are found guilty of an offence, and for the DNA of someone accused of violent or sexual offences to be kept for three years, even if they are not subsequently found guilty. The Bill proposes to extend these existing provisions so that the fingerprints of those accused of violent and sexual offences can be retained for three years (bringing the provision for fingerprints in line with DNA); and also seeks to extend the powers of retention of fingerprint and DNA data obtained from children who have been referred to the Children’s Hearings System for committing sexual or violent offences.

The witnesses were asked about the recent European Court judgement which ruled that the indefinite retention of DNA from suspects in England and Wales contravened human rights legislation, and they said that the issue with this judgement was not so much the retention of DNA from people who were not found guilty, rather it was that this data was held indefinitely. They confirmed that in their view the proposals in the Bill did not contravene this judgement, and they also viewed them as reasonable and proportionate, given that a considerable number of violent or sexual offenders reoffend within a three year period. They also said that the provisions in the Bill in which a sheriff can extend the period of retention for two years is fair, given that this would be decided on the basis of further evidence provided, and it would be subject to legal processes. Tom Nelson said that he would like the DNA and fingerprint data of people who are subject to a direct measure, as opposed to a criminal proceeding, to be retained, saying that not only would this increase detections, but that catching offenders earlier in their criminal career would also help them to be diverted from that path, before offending became a way of life for them. 

Regarding the proposals around the retention of DNA from those children and young people who had been referred to the CHS on offence grounds related to serious violent or sexual offences, the witnesses both said that they supported these measures and they considered them proportionate to the benefits that would come with them.

The Committee then heard from Lord Coulsfield, who had reviewed the law surrounding the disclosure of evidence for the Scottish Executive in early 2007. He was asked to carry out this review because of uncertainty about the requirements of the prosecution’s duty to disclose evidence to the defence, and his report recommended introducing a statutory framework for disclosure, replacing the current common law system. In his evidence to the Committee, he said that he did not criticise the general approach of the Bill, but he said that he was ‘extremely concerned’ about the way in which it had been drafted, saying that it obscured the simple duty of what is already currently expected. He said that many of the proposals that are currently contained in the Bill, especially regarding what the police are expected to do, should be removed and put into a written code of practice instead.

The final panel of witnesses comprised of a number of academics who are all specialists in areas relating to sentencing. They were asked firstly about the criticisms that have been heard from the judiciary that plans for a Sentencing Council would impede judicial independence and all disagreed with this view. Dr Cyrus Tata argued that a Council could actually help to reinforce judicial independence, because it would shield sentencing from the heat of politics, or from a case which caused particular public concern, and Dr James Chalmers said that, given that the Bill makes clear that the final decision on sentencing is still left to the judges, judicial independence cannot be undermined.

The witnesses were also asked about the vexed issue of consistency in sentencing, which has caused so much disagreement so far in evidence. Dr Tata and Professor Neil Hutton are two of the few people to have carried out any research into consistency in sentencing in Scotland, so they were able to furnish the Committee with evidence of their own research and research from abroad. They said that ‘consistency’ as an aim of sentencing should be treated with caution, given that no two cases will be exactly alike. Dr Tata said that that uniformity is not consistency, and that consistency does not mean that every case of house breaking should be treated alike. It was suggested that what should be aimed for is a coherence to sentencing, in which the decisions that are taken are based on shared principles which both the judiciary and the public can understand. Dr Chalmers that it was very difficult to have a debate about consistency without guidelines, except at the level of individual cases, and it would therefore be helpful if there were a means whereby a debate could take place at a more general, abstract level.

Dr Sarah Armstrong also said that at present there were no ways for sentencers to keep abreast of research on sentencing or consider the efficacy of certain disposals, and she argued that a Council could provide a forum for these discussions to take place. Dr Tata suggested the Council could carry out other tasks, such as look at both the ‘front and the back door of sentencing’, i.e. the release arrangements, saying that there is a need for them to both be considered as a whole in order to get a coherent policy, and it could also look at specific issues such as the imprisonment of women.

The witnesses were asked about the parts of the Bill which seek to make a presumption against custodial sentences of six months or under, and the point was made that it would be much more sensible to begin with the question of what sort of cases, broadly speaking, should attract custodial sentences, and which should not, rather than to say that all sentences of six months or under should automatically be converted into a community penalty. The importance of making sure that the offenders serving the sentences were fully aware of the conditions attached to them was emphasised by several of the witnesses, given that research has shown that many people who break their conditions of bail do so simply because they have not understood them properly.

You can read all the evidence from the meeting in the Official Report, or watch it on Holyrood.TV. You can also read all the written submissions from today’s witnesses on pages 34 – 82 of the Meeting Papers,and read more about the Bill in general on the Criminal Justice and Licensing (Scotland) Bill Committee page. Follow the Committee’s scrutiny of the Bill on the CjScotland news pages: Justice Committee: Criminal Justice Bill Stage 1 evidence proceedings.

The Equal Opportunities Committee

Inquiry into female offenders in the Justice System

The Committee continued its inquiry into women in the justice system, and focused on assessing the availability and effectiveness of support for ex’prisoners. The first witnesses were representatives from SACRO and APEX who spoke about the possibilities of encouraging more Community Justice Authroities to include specific proposals for female offenders in their area plans, and of encouraging the Scottish Prison Service to work in collaboration with CJAs to a greater extent to carry out research on what factors help female offenders stop offending once they have been released from prison. They also spoke about the factors that will help an offender to not breach their conditions of bail, and they spoke favourably about the proposed Community Payback Orders in the Criminal Justice and Licensing Bill. The SACRO representative spoke about the value of a mentoring scheme for ex prisoners, and said that there are currently very few resources available for new criminal justice schemes to get off the ground: the APEX representative spoke about the challenges of helping female ex prisoners into employment or developing life skills.

The next panel comprised of spokespeople from the Association of Directors of Social Work, the Association of Local Authority Chief Housing Officers, and a consultant psychiatrist from NHS Grampian. They said that although there are examples of good schemes for female offenders that operate throughout Scotland such as the 218 Centre in Glasgow, it would be inappropriate for one model to apply to every local area, and the task should be to encourage schemes which are suitable for each geographical and social area. The need of local services which will also help reintegration, versus the economic and logistical benefits of having a centralised set of services for women in Cornton Vale, for example, was also spoken about. The difficulty of treating women with ‘borderline personality disorder’ was spoken about, and how early intervention can be achieved without drawing more people into the system.

The final panel of witnesses was comprised of an ex–offender and two support workers from the Circle family support project, which provides community based support to marginalised children and families. They spoke about the need for intensive support for women who have just been released from prison, which includes accompanying them to every appointment they have, helping them with parenting skills, and ensuring their housing needs are met. The speakers said that it is often when the women are on remand that they are most committed to change, and the Circle client spoke about her differing experiences of both a community and a custodial sentence. She also spoke about maintaining her relationship with her son during her time in prison, and significant level of numeracy and literacy problems that exist in Cornton Vale.

You can read all the evidence from this part of the meeting in the Official Report, or watch it on Holyrood.TV. You can also read the particularly good briefings of the evidence received so far as part of this inquiry in pages 7 – 8 of the official Meeting Papers.

Chamber

First Minister’s Questions

Parliamentary notification about prison escape

The issue of the First Minister’s handling of the open prison escape during First Minister’s Questions the previous week, arose again. Iain Gray (Lab) said that during the exchange about open prisons last week in which the First Minister was asked seven times about recent escapes from the open estate, not once did he mention that another prisoner had escaped just the day before, despite the fact that both he and the Justice Secretary had been alerted to this by the police by this point. He said that the First Minister was not being open and transparent with the Parliament reiterated his argument that this failure to disclose the escape meant that the FM had no regard for truth or respect for the Parliament.

The First Minister replied that the reason he had not disclosed the escape to the Parliament at that time, was because the police had operational independence from the Government, and he quoted from the head of ACPOS who said in a statement that it would be ‘entirely inappropriate’ for the First Minister to announce an escape before the police had decided to do so. He also pointed out that Cathy Jamieson, the Labour Justice Minister in the previous administration, had not once announced an escape to the Chamber, and he said that the Chamber should wait for the results of the review he has established into whether he misled the Parliament.

Annabel Goldie (Con) used her question to go over the same ground as Iain Gray, accusing the First Minister of a lack of clarity and withholding information from the Parliament. The First Minister gave the same justifications as earlier in response, reiterating that the matter was one of operational independence and that the Chamber should await the results of the review.

You can read these question in the Official Report. See also the press in the CJScotland Newsblog.

Binge drinking

Christine Grahame (SNP) spoke about a recent television programme in which a pop star was asked to binge drink for four weeks in order to highlight the dangers of excessive drinking to young people. Ms Grahame said that this programme was a shocking expose of binge drinking which should be shown in schools throughout Scotland. The First Minister replied by listing the various initiatives and planned legislation aimed at tackling excessive drinking in young people, including plans for minimum pricing and targeting retailers who sell alcohol to those who are underage. However, he acknowledged that education played an important role as well, and he said he would write to Ms Grahame to consider if her suggestion could be included in the existing measures for schools.

You can read this question in the Official Report.

Drug Addiction Treatment

Mary Scanlon (Con) asked the First Minister about recent reports that the Government was going to introduce a target of 21 days between referral to treatment for drug treatment services, and she wanted to know whether equal emphasis would be given to people’s underlying mental health needs as to their drug problems. The First Minister replied that the target was currently being discussed by the Government and the NHS, but had not yet been finalised, and he also said that he was unable to comment more specifically on whether the measures will also focus on mental heath at this state

You can read this question in the Official Report.

You can also watch all the First Minister’s questions on Holyrood.TV.

Questions to the Law and Justice Officers

Fine defaulters and custodial sentences

Bill Wilson (SNP) asked the Cabinet Secretary about the numbers of people in prison for fine defaulting, who would otherwise not have received a custodial sentence. The Cabinet Secretary replied that this number now stood at 29% of the daily prison population, which is a significant reduction from 46% in the previous year, a decrease that he put down to the introduction of mandatory supervised attendance orders (SAOs) for offenders who have defaulted for a fine of £500 or below. In reply to supplementary questions from Richard Baker (Lab) and Bill Aitken (Con), he underlined support for the use of SAOs, and said that their breach rate of 87% represents a ‘good result’.

Domestic Abuse

Tom McCabe (Lab) highlighted the connection between large football matches and incidents of domestic abuse in his question for the Justice Secretary, and both he and Sandra White (SNP) wanted to know what measures the Government were taking on this issues. Mr MacAskill quoted research carried out by Strathclyde Police, which showed that domestic violence increased by more than 40% on the day of an Old Firm match, and he welcomed the approach taken by that police force, which worked together with partner agencies both before, during and after the match, in order to deter and prevent violent behaviour. He said that the solution to tackling domestic violence had to involve education and cultural beliefs, with a specific focus on tackling the relationship between alcohol and domestic abuse.

Antisocial behaviour

Alex Johnstone (Con) asked the Minister for Community Safety about how the Government intends to tackle anti’social behaviour, saying that he is receiving an increasing number of complaints about increased antisocial behaviour in towns in the north east, and that a system whereby a range of different agencies can work together unfettered by bureaucracy, to fight antisocial behaviour should be allowed to develop. The Minister replied that an interagency approach is indeed required, and that the extra police the SNP has provided was also helping. In supplementary questions, he agreed with Nigel Don (SNP) that any money spent tackling drugs would also help to decrease anti–social behaviour, and he also chastised Paul Martin (Lab) who criticised Strathclyde police’s contact centre, saying it was entirely inappropriate for a member to criticise the police in such a specific way in the Chamber

Rehabilitation of offenders sentenced to religiously aggravated offences

Bill Butler (Lab) wanted to know if there was a nationwide rehabilitation programme for offenders sentenced for a religiously aggravated offence, and he urged the Government to roll out a resource pack aimed at this rehabilitation which had been piloted in Polmont. The Minister for Community Safety replied that although there was not custom made rehabilitation programme for these type of offences, there were a range of initiatives in place throughout Scotland to tackle sectarianism, and he said that he would be happy to meet with Mr Butler and discuss how these could be developed further if he wished.

Community sentences funding

Cathie Craigie (Lab) brought up evidence heard in the Justice Committee, which argued that if the proposed community payback orders are to be an effective alternative to short terms in custody, there will need to be a marked increase in spending for community sentences. The Cabinet Secretary replied that the Government has pledged an extra £2 million for community sentences, but that the issue is not one of providing extra resources, but also about improving the system so that those who commit less serious crimes are put to work rather than being provided ‘free bed and board’ at the expense of the taxpayer.

Rates of violent crime

The Cabinet Secretary joined Tricia Marwick (SNP) in congratulating Fife Constabulary’s recently announced reduction in recorded crime and increase in conviction rates, although he did not join his colleague in publicly criticising Claire Baker (Lab) who recently publicly announced that crime in Fife had increased. Ms Baker rebutted these accusations in the supplementary question, by pointing out that it was levels of violent crime, rather than overall crime, which had increased in specific areas of Fife.

You can read all these questions in the Official Report, or watch them on Holyrood.TV.

Offences (Aggravation by Prejudice) Bill Stage 3 Debate

Later in the afternoon Parliament debated the final stage 3 of the Offences (Aggravation by Prejudice) Bill. This is a ‘handout bill’, a Member’s Bill supported by the Government. It was introduced to the Parliament by Patrick Harvie (Green), who wanted the law to recognise crimes aggravated by hatred of a person’s actual or presumed sexual orientation, transgender identity or disability, in the same way as it already recognises aggravations that exist to protect individuals and groups targeted on racial and religious ground. Normal practice for stage three debates are that the Chamber first debates and votes on any stage 3 amendments, and then debates and votes on the final version of the Bill. However, this Bill was in the unique position of not having any amendments lodged against it in Stage 2, meaning that the Chamber moved immediately to the Stage 3 debate.

Patrick Harvey opened sayomh that this Bill was a small, but very necessary step, towards making Scotland a fairer place. He spoke about his experience growing up when homophobic language was accepted as par for the course, and he said that his experience supporting young lesbian, gay, bisexual and transgender people also alerted him to the very distressing abuse that they often suffer. The legislation also creates an aggravation based on hatred against those with disabilities, which he welcomed as including those infected with HIV. He said that the Bill will allow the appropriate sentence to be handed out (although emphasised that this did not necessarily mean tougher), and he said that as well as sending out the very clear message that such hatred is not tolerated in modern day Scotland, it will also allow better data to be gathered about this prejudice, because police and prosecutors will now be obliged to record all aggravations. Finally he said that he was aware that this Bill was not a silver bullet that will end all hatred and discrimination, but it was nonetheless a necessary step in the right direction.

The Cabinet Secretary for Justice spoke next, and he paid warm tribute to Patrick Harvie’s work on this legislation, saying that the Government were happy to support this Bill given that there was ‘no place for hate crime in modern Scotland’. He also said that, although the Government and Parliament have put the law on statute books, it was now up to the police, the Crown Office and the Procurator Fiscal Service to ensure that they are used.

The other speakers also paid tribute to the work of Patrick Harvie, and reiterated the need to protect vulnerable groups who may be subject to forms of discrimination in legislation. At the end of the speeches, the legislation was passed without opposition.

You can read the full transcripts of the meeting in the Official Report, and you can watch it on Holyrood.TV. You can also read the press and access all the official Bill documents, on the CJScotland Newsblog.

Written Questions

There were a number of questions about the Children’s Hearing System, about a Government review of CCTV, and the procedures for chasing up non’payment of fines. There were some questions about serious and organised crime, about deaths from drugs, and about convictions for dealing drugs. There were questions about compensation paid to victims of crime, a range of justice questions including data about crimes involving offensive weapons, fines imposed by courts, and the escape from open prison. There were more justice questions, this time about police training, custodial sentences, and prosecutions for offensive weapons. Finally, there were a number of questions about what the Government is doing to tackle sectarianism.

Posted by KM on Wed 10th Jun 2009 at 8:50 am
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