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Monday, June 15, 2009
The Justice Committee continued hearing evidence as part of their scrutiny of the Criminal Justice and Licensing Bill, this week hearing from the Chief Executive of the SPS, the Convenor of CoSLA, and the Lord Advocate. In the Chamber the Sexual Offences Bill was debated and agreed to at Stage 3.
The Committee
Criminal Justice and Licensing Bill Stage 1
The Committee continued its consideration of the Bill at Stage 1.
Mike Ewart and Rona Sweeney from the Scottish Prison Service were the first panel. They were asked about the presumption for under six month custodial sentence, and Mr Ewart said that there was a “strong consensus” that six months was the appropriate cut off point for custodial sentences. He refused to criticise sentencing decisions that are made by the judiciary, but he said that he would question some of the assertions that Sheriffs make about the value of short sentences, such as that they give respite to the community. The witnesses were queried about whether short term imprisonment will do more harm than good in every case, and they replied that there is a consensus that this is likely to be case, with Mr Ewart saying that, no matter what an individual&’squo;s circumstances, they will be made more difficult with imprisonment. Both witnesses said that there was a pressing need to reduce the prison population rather than increase capacity.
Committee member Paul Martin tried to get the witnesses to admit that if sentences of six months or under would be scrapped, this would result in significant financial savings for the Government, but they said that this was not necessarily the case, because even if the number of short prison sentences were reduced by 50%, prisons would still be operating over their design capacity. The witnesses said that that the extra resources required for additional community penalties could therefore not be easily transferred from the SPS budget, and Mr Ewart said that the biggest obstacle in encouraging the greater use of community penalties was in managing the transition.
Mr Ewart gave a personal view that someone from the SPS should be represented on the sentencing council, although he admitted this may not be appropriate because firstly they are the agency which is required to discharge the sentence that is handed out by judiciary, and secondly because they are an arm of Government.
The next panel of witnesses were the Convenor and the policy officer for the Convention of Scottish Local Authorities, Councillor Harry McGuigan and Mike Callaghan. They were asked about how the community payback orders (CPOs) might work, including who the ‘responsible officer’ for each order would be. Councillor McGuigan said that if community penalties were adequately resourced and the staff properly trained and supported, he firmly believed that CPOs would deliver benefits to offenders and communities. The witnesses were asked why they believed that CPOs should be any more successful than the current community sentences, and Councillor McGuigan said that CPOs will require input from a range of agencies who will be required to co–operate to a much larger extent than is currently the case, and that this will be aided by the greater involvement of the CJAs who will also be tasked with ensuring that agencies are delivering their single outcome agreements in their area. He said that he was confident that the new CPOs would be an improvement on the current arrangements, but he refused to say that there would be a massive reduction in numbers of breaches with CPOs. They also put on record their view that resources were absolutely critical if these reforms were to be successful or not.
The final panel of witnesses was the Lord Advocate the Rt Hon Elish Angiolini QC; the Solicitor General for Scotland, Frank Mulholland QC; and John Logue who is the head of policy division at the Crown Office and Procurator Fiscal Service.
The Lord Advocate was asked about the sentencing council, and she said that the creation of the council would be a ‘huge benefit to the justice system’. She said that in her view such a council would not impede judicial independence, because judges would not be bound to follow the guidance, provided they stated in open court their reasons for diverting from them. She also said that guidelines from a council could be beneficial for the judiciary given that at the current time they do not have access to any information which can help them, and that the council would also help provide some clarity to the public about the sentencing process. She also said that there is currently no mechanism for judges to be aware of the public mood or attitude towards sentencing. Currently they are only guided by newspaper editors, and she argued that a council would provide a much more systematic way for them to have regard to how sentencing could be carried out in the public interest.
She also said that she supported the provisions in the Bill which would enshrine in statute that alcohol cannot be used as a mitigating factor in sentencing. Although most judges do not consider this as a mitigating factor, she said that many defence lawyers, often in cases of domestic abuse, still seek to use this as a mitigating factor, and she said that it is important that it be put on statute that this cannot be the case.
The Lord Advocate and the Solicitor General both also spoke positively about the provisions in the Bill which relate to organised crime, saying that there was a need for further offences to be created in this area, given that the current laws do not allow the prosecution of many people who operate on the fringes of organised crime, but who facilitate its operation.
You can read all the evidence from this part of the meeting in the Official Report, and you can also read the witnesses‘ written evidence to the Committee in pages 4 - 12 of the meeting papers.
Subordinate Legislation – Licensing (Mandatory Conditions) (Scotland) Regulations 2009 (Draft)
Following this evidence, the Committee were joined by the Cabinet Secretary to move an item of subordinate legislation which would exempt particular premises from the law which limits the ways that alcohol can be displayed in shops. The intention behind the law was change the way that alcohol was displayed ‘as if it was an ordinary commodity like any other’, and it forbid shops from practices such as cross–merchandising whereby cans of beer were displayed next to packets of crisps. However, as a result of successful lobbying from distilleries and the tourism trade, the Government has decided to introduce an amendment which would remove gift shops in distillery visitor centres from having to follow these laws. After a long and technical debate about the wording of the amendment and whether it was appropriate to amend primary legislation in this manner, the Committee agreed the regulations, with the Convenor, Bill Aitken, saying that no–one disagreed with the intentions of the Order.
You can read this part of the meeting in the Official Report in read more about the regulations in pages 16 – 22 of the meeting papers.
You can also watch the whole meeting on Holyrood.TV.
The Chamber
Sexual Offences Bill (Stage 3)
Last Wednesday marked the conclusion of the Parliamentary process of the Sexual Offences Bill, which makes widespread changes to the law around sexual offences. The Chamber began by debating the final stage 3 amendments.
Arguably the most important amendment to be debated was put forward by Margaret Curran (Lab) and it sought to close what she called a significant loophole in the wording in the part of the Bill which lists a set of occasions in which consent to sexual activity is absent, for example if the individual is incapacitated by alcohol or drugs. Ms Curran amendment would remove the principle of ‘prior consent’ from this list, which prohibits a defence that consent was given at an earlier stage to the time when sexual activity occurs. The issue of prior consent had also caused difficulty for the Justice Committee, which recommended it be removed in their Stage 1 report. Robert Brown (LD) and Bill Aitken (Con) said their parties both had reservations with said this amendment although they supported the spirit in which it was lodged. They argued that here were already other safeguards built into the Bill to protect those who are incapacitated at the time of sexual activity, and that this amendment may simply provide more problems than it solves. The Cabinet Secretary said that the Government were happy to support Ms Curran’s amendment, and that this amendment would provide a belt and braces approach to protect those who may be so incapable as to be able to provide consent at the time of sexual activity. The amendment was duly agreed to.
The other group of amendments which attracted debate were a group put forward by Robert Brown (LD) on penalties for sexual offences. He said that his amendments intended to deal with a loophole which was inadvertently created at Stage 2, when the Committee agreed to change the Bill so that a fine could never be given for any sexual offence. However, upon reflection and further discussions, it was realised that there are in fact many more minor sexual offences for which a fine would be appropriate, for example for kissing someone against their will. Mr Brown argued that in those situations a custodial sentence would clearly be inappropriate. Only the Labour Members, particularly Paul Martin (Lab) argued that the existing situation should remain, and the group of amendments were agreed to at the vote (with only Labour voting against them), meaning that the option of a fine for non–serious sexual assaults remained in the Bill.
You can read all the transcripts which dealt with the amendments in the Bill in this part of the Official Report.
Following the completion of the amendments, the Chamber voted on the final amended version of the Bill. Kenny MacAskill opened the debate, and he welcomed the Bill for modernising and clarifying what has been a ‘complex patchwork of common law and statutory provisions.’ He said that the Bill would abolish the use of outmoded terminology and for the first time put a whole area of law on statutory footing, which he also said was a major step forward for the Parliament, given that ‘the primacy of Parliament in determining the law of the land is one of the hallmarks of democracy.’ He welcomed the new definition of consent as free agreement which he said will be easy to understand by everyone, and said that this Bill would ensure that victims are protected and offenders are punished. However, he cautioned against the belief that this Bill would provide the silver bullet to address the prosecution of sexual offending, saying there was still a need to challenge public misconceptions and change public attitudes, and that this piece of legislation is only the beginning of what will be a long road.
Paul Martin (Lab) praised the work carried out by the Lord Advocate in reforming this area of the law, and he also highlighted the importance of consulting young people when it comes to drafting legislation which will affect them, which was an issue which was highlighted in the Committee process.
Bill Aitken (Con) said he welcomed the widening of the definition of rape, saying that these were necessary for the times we live in. He said that it was now up to the courts to define what ‘free agreement’ and ‘incapable’ mean, and he said that this has been a ‘good piece of work’ by the Parliament.
Robert Brown (LD) thanked the Cabinet Secretary and his staff and he also paid tribute to the Committee system which he said has meant that this Bill will command wide consent. He also spoke about one of the most controversial areas of the Bill during the Committee Stage, that of the legal age of consent. The Bill retains it at 16, despite the Scottish Law Commission’s recommendations that it be lowered to 13. He said that this was the correct approach which would send out a clear message to young people and also hopefully act as a deterrent.
During the speeches which followed, Members spoke about the importance of this Bill, with many female members especially underlining the urgent need to reform the laws in this area to protect women who suffer sexual violence. At the end of the debate the Bill was agreed to unanimously.
You can read the full transcripts of the debate in the Official Report, and watch it on Holyrood.TV . You can also read the press and access the Bill documents in the CJScotland Weblog
Questions
Domestic Abuse risk assessmenttJohann Lamont (Lab) asked the Cabinet Secretary if when he last met with the Chief Constable of Strathclyde Police, they discussed supporting the ASSIST (advice, support, safety and information services) process, which ensures the proper risk assessment to inform the domestic abuse courts. The Cabinet Secretary replied that the Chief Constable takes domestic abuse very seriously, and he views it as part of the culture of violence which must be tackled. And you can read this question in the Official Report
Unpaid court fines
Bill Aitken (Con) asked the Cabinet Secretary how many court fines have been issued over the past three years, and how many remain unpaid. Mr MacAskill replied that the total figure for fines from the High Courts and Sheriff Courts not including civil court fines, was £55 million. 83 per cent of offenders have paid the fines handed out by Sheriff courts over the past three years, and that of the total figure, including civil diligence, 77 per cent has already been collected for fines imposed since 2005. He also said that 6 per cent is in the process of being collected in instalments; 10 per cent was discharged by a sheriff through alternative sentences such as supervised attendance orders or imprisonment; and 7 per cent is in arrears and will be the focus of targeted sanctions by the newly brought–in fines enforcement officers, who have a range of powers to ensure that fines imposed are paid. You can read this question in the Official Report.
This issue was pursued further by Annabel Goldie (Con) during FMQs. Illustrating how statistics can back up any argument, she said that there are currently ‘almost 12,500’ people in Scotland who have ‘not paid one penny’ of their fines, and that there is currently £8 million owed by fine defaulters in total. She said that the problem is escalating to the extent that by the end of this session of Parliament (2 years time), this figure will be around £30 million. She said that sending out warning letters and court citations is not addressing the problem and that it would be much more sensible to introduce a system whereby fines were deducted at source.
The First Minister replied with although the current rates for fine enforcement are not satisfactory, enforcement sanctions are working and that their use is being accelerated. He said that more than 45,000 enforcement orders, more than 3,000 benefit deduction orders, and almost 600 earnings arrestment orders, have been granted or issued by the courts. And you can read this question in the Official Report.
Written questions
There was a written question about unpaid court fines broken down by individual Sheriffdoms, and about the Government’s response to calls for mandatory drug testing for everyone who is arrested by the police. There was a question about the views of the Lockerbie victims with respect to the repatriation of Mr Abdelbaset Al Mohamed Al Megrahi. There was a question about services for those with mental health problems in prison, and a number of questions about the procedures surrounding the most recent escape from the open estate, and finally about provisions for young offenders in secure custody.
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