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Section 3 — Amendment of provisions relating to transferred life prisoners

Convention Rights (Compliance) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:00 pm on 30th May 2001.

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Photo of Iain Gray Iain Gray Labour

Amendment 2 re-enacts the whole of section 10(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 to make the provision easier to read. I fear that it does not make it easy to read, but it does make it easier.

The only further changes that amendment 2 makes to section 3 are the addition of subsections (1)(b) and (1)(c), which relate to transfers of life prisoners from the Isle of Man and Northern Ireland, and the insertion of section 3(1A), which provides a power for ministers by order to specify the relevant provisions in relation to Northern Ireland. I will take a moment to explain why the Executive has taken that approach.

At present, in Northern Ireland, the release of a life prisoner is a matter for the Secretary of State for Northern Ireland. There is no system of judicial tariffs in relation to discretionary lifers and under-18 murderers as there is in Scotland. However, the Secretary of State for Northern Ireland is in the process of changing the law in Northern Ireland to provide that, in future, discretionary lifers, under-18 murderers and adult mandatory life prisoners are given a judicial tariff that is fixed in open court. It is expected that the order making those changes—the draft Life Sentences (Northern Ireland) Order 2001—will be made soon.

The changes to the law in Northern Ireland mean that, in future, Scottish ministers will be in a position to accept restricted or unrestricted transfers from Northern Ireland on the following basis. Restricted transfer prisoners with a judicial tariff set in open court will remain subject to Northern Ireland law and will retain the judicial tariff that was set there. Unrestricted transfer prisoners with a judicial tariff set in open court in Northern Ireland will have that tariff treated as if it were a punishment part set by a Scottish court, unless it is a whole-life tariff. Amendment 2 deals in the same way with discretionary life detainees from the Isle of Man.

The new section 10A(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which is inserted by section 3(1A) currently applies only to prisoners who are released on compassionate grounds in England and Wales. The effect of that is that, on transfer to Scotland, the offender will have a punishment part set by the High Court if he is recalled to custody and the Parole Board does not order his immediate release.

Amendment 3 extends the provision to prisoners who are released on compassionate grounds in Northern Ireland. During stage 2, I advised the Justice 1 Committee that provision would be required to bring such prisoners into the new system, but that it would be held back until stage 3, in the hope that the draft Life Sentences (Northern Ireland) Order 2001 would have been made. Unfortunately, that has not happened yet, so the exact provisions of the legislation, which the bill should specify, are not yet settled. Amendments 2 and 3 give the Scottish ministers a power to identify the relevant provisions of Northern Ireland legislation by subordinate legislation when that is possible.

Amendment 41 inserts the relevant Isle of Man and Northern Ireland provisions into section 10(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which provides that a transferred lifer who is serving two or more life sentences will not be released until he has served the punishment part of both sentences.

Amendment 21 is technical.

I move amendment 2.

Photo of Phil Gallie Phil Gallie Conservative

I would like to query the Deputy Minister for Justice a little further. The group of amendments performs a major rewrite of section 3, which we discussed at stage 2. I note that the minister finds it necessary to mention England and Wales, the Isle of Man and Northern Ireland, of whose situation he gave a fairly lucid description. He needs to mention the Isle of Man in the bill, so why does not he have thoughts on the Channel Islands or other parts of the British Isles? Will he have to address that issue later? Are the systems in the Channel Islands and the Isle of Man different?

Photo of Iain Gray Iain Gray Labour

We have attempted to cover all the jurisdictions for which different arrangements must be made. I hope that we have achieved that aim. Some aspects of the position in the Isle of Man and Northern Ireland have to be dealt with. We intend to cover all the jurisdictions in the UK so that we can make arrangements for transfer of prisoners.

I confess that I cannot answer Mr Gallie's question about the Channel Islands, but I am happy to look into that and provide reassurance.

Amendment 2 agreed to.

Photo of George Reid George Reid Scottish National Party

Amendment 16 is grouped with amendments 17, 18 and 44.

Photo of Jim Wallace Jim Wallace Liberal Democrat

When the bill was introduced, it allowed some categories of life prisoner to waive their right to a hearing to have the punishment part set. The categories that we had in mind were existing murderers who were under 18 and existing Scottish and transferred discretionary life prisoners who had designated parts set by way of a paper exercise.

At stage 2, amendments extended the entitlement to waive the right to a hearing to existing adult mandatory life prisoners dealt with under part 2 of the schedule—those with an agreed provisional release date or a recommended provisional release date from the Parole Board—and to transferred life prisoners in a similar position.

Amendment 16 extends the opportunity to waive the right to a hearing to any transferred life prisoner who has a tariff set under identified statutory provisions by the judiciary or by the secretary of state by way of a paper exercise. If such a prisoner waived his right to a hearing, his tariff set in the sending jurisdiction would be treated as if it were a punishment part set in Scotland.

Amendment 16 also provides an order-making power to allow the Scottish ministers to identify further types of tariff. Prisoners subject to such tariffs would be entitled to waive their right to a hearing on transfer to Scotland. That would allow for further provisions to be introduced in other parts of the United Kingdom on the setting of prisoners' tariffs that we do not consider to comply with the European convention on human rights, but which could comply in the future. In that way, the relevant prisoners would be entitled to waive their right to a hearing on transfer to Scotland.

Amendment 17 is consequential on amendment 16. It simply provides that a transferred life prisoner will have his case referred for a hearing to have a punishment part set unless he has waived that right or has served the tariff that was set in the sending jurisdiction.

Amendment 44, in the name of Phil Gallie, relates to the inter-jurisdiction transferral of prisoners. Mr Gallie tried a similar amendment at stage 2, but the answer is still the same. Inter-jurisdiction transfers of prisoners—that is the transfer of prisoners from outwith the United Kingdom—are governed by international conventions and bilateral repatriation agreements. The bill will not change those arrangements and there is therefore no reason why difficulties with the operation of existing arrangements should result from the proposals in the bill. I ask Mr Gallie to consider not pressing amendment 44 after he has had a chance to speak to that amendment.

I move amendment 16.

Photo of Phil Gallie Phil Gallie Conservative

First, I will address my remarks to amendment 16. In taking evidence on the bill, the Justice 1 Committee had its attention drawn to the fact that a swings-and-roundabouts movement could occur for prisoners currently serving sentences who have not had punishment and deterrent elements set. When those prisoners are taken into court to have those elements set, some may be released a little earlier than they could have expected and others may well have longer periods of detention prescribed for them.

My objection to amendment 16 is that it will give prisoners the impression that, by sitting back from their right to have a hearing, they can choose the roundabout rather than the swing. Rather than having everyone go through the system, amendment 16 will allow individuals to set the rules for themselves. If they thought that they would be more harshly dealt with at a hearing, of course they will waive their right to one. That is the wrong way to go about the setting of punishment parts. The approach should be all-embracing. I was assured by the swings-and-roundabouts approach that fairness would ultimately be achieved.

Photo of Gordon Jackson Gordon Jackson Labour

How can Phil Gallie possibly apply the swings-and-roundabouts approach to the individual's case? It is to do with the justice for that individual. How can Phil Gallie possibly change the tariff of someone who has already been given one by the Home Secretary or an English court? That would be to play swings and roundabouts with someone else's case.

Photo of Phil Gallie Phil Gallie Conservative

We are talking about the principles of the bill. We are talking about individuals who have a procedure to go through. Those individuals should not have the right to pick and choose for themselves. The system should be clear and identifiable. If individuals are supposed to have their sentences set as a punishment and deterrent, that principle should apply to everyone to whom the section applies.

On amendment 44, I still feel that there is an issue with the setting of the punishment part for transferred prisoners. The minister has suggested today that international law already allows agreements on the transfer of prisoners to be upheld. I cannot envisage that being written into the bill. For the very reasons that Gordon Jackson and the minister have identified, individuals should be entitled to have a full hearing once they come under our jurisdiction.

My request is simple. I refer to past cases in which members undoubtedly tried to help parents bring their children back to Scotland to serve a sentence. I think of one in particular: Sandra Gregory from Inverurie, who was sentenced in Bangkok. Many people of all parties worked to bring her back to the United Kingdom to serve her sentence. However, if the authorities in some jurisdictions believed that the sentence that they had passed on a prisoner would be reduced to a level that they did not recognise, that could lead to the blocking of the transfer of the individual to a prison nearer their home. We would do such people no service if that were the case. We should recognise and honour any agreements on the length of sentences that recognise the rights of other countries to impose the law as they feel is justified. That would be achieved by including any such agreements in the file of that individual. I will not step back from my amendment but ask the minister to accept it.

Photo of Jim Wallace Jim Wallace Liberal Democrat 3:15 pm, 30th May 2001

On Phil Gallie's initial points, which were picked up by Gordon Jackson, we are talking about people who have been given a paper-based tariff in other parts of the United Kingdom, by the Home Secretary or the English or Welsh courts. Gordon Jackson rightly pointed out that it is very unfair that the tariffs for those people should suddenly be upset.

It is an interesting jurisprudential point whether somehow or other a right can be forced on someone. The point being made here is that they have the right to waive a hearing to set a punishment part if a period has already been set. In fact, it could be very disruptive if people found, after entering a life sentence for which a tariff had been set and when a lot of the treatment had been geared to the date of possible release, everything got upset. That could be counter-productive. A right cannot be forced on someone; we are making provision for them to waive that right, if they wish to do so.

Photo of Phil Gallie Phil Gallie Conservative

The minister must consider the other side of the argument. If the court in England or Wales has set a tariff, why should our jurisdictions set that tariff at a lower rate? That prisoner had his expectation and knew how long he would serve. When he comes into the Scottish system and the courts consider his case and downgrade the tariff, his expectations will change, albeit to a betterment of his situation.

Photo of Jim Wallace Jim Wallace Liberal Democrat

There is no reason why courts should downgrade or upgrade the tariff. The point is that, if that is what the prisoner who has been transferred has, in many respects, reconciled himself to, we will not force the prisoner to exercise a right that he does not wish to exercise. That would be an odd concept. We therefore provide the opportunity for that right to be waived.

I ask the Parliament to resist amendment 44. As I indicated, the inter-jurisdiction transfer of prisoners is governed by international conventions and bilateral agreements. What Mr Gallie has said may have a bearing on whether a foreign jurisdiction would consider whether to repatriate a prisoner, but as there is nothing in the bill that in any way changes those international conventions and bilateral agreements, the issue is as pertinent today as it will be after the passage of the bill. We have entered into international agreements and the bill does not seek to change that; I therefore urge the Parliament to reject amendment 44.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 16 be agreed to. Are we agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 65, Against 14, Abstentions 0.

Amendment 16 agreed to.

Amendments 17 and 18 moved—[Mr Jim Wallace]—and agreed to.

Amendment 44 moved—[Phil Gallie].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 44 be agreed to. Are we agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 14, Against 63, Abstentions 0.

Amendment 44 disagreed to.

Photo of George Reid George Reid Scottish National Party

Amendment 19 is grouped with amendments 7, 8, 9, 11, 12 and 13.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Amendments 7, 8, 9, 11, 12 and 13 are technical amendments and are intended to clarify the application of paragraphs 15A and 46A of the schedule to the bill. Paragraphs 15A and 46A are transitional provisions, which provide that existing life prisoners and existing transferred life prisoners who have received more than one life sentence for crimes libelled on the same indictment—or which have been transferred from an equivalent document in the initial jurisdiction—will receive only one punishment part. Members will recall that we debated that principle just a few moments ago. The amendments are intended to ensure that an appropriate punishment part is imposed for all the crimes on an indictment in respect of which a life sentence is imposed, taking into account any other convictions that appear on the same indictment.

Amendments 7 and 11 will amend paragraphs 15A(b) and 46A(b) to make it clear that those transitional provisions apply to a person who is serving more than one life sentence, where two or more of those life sentences have been imposed for offences for which the offender was convicted on a single indictment. Amendments 8 and 12 will amend the relevant paragraphs and clarify that paragraphs 15A and 46A, as the case may be, apply to a person who continues to be detained in respect of more than one life sentence imposed on a single indictment or equivalent document, even if he is subject to another life sentence from which he has previously been released.

Amendments 36, 37, 80 and 102 at stage 2 provided that, where an existing life prisoner, an existing transferred life prisoner or a future life prisoner is convicted of more than one crime libelled on a single indictment, for which the court would be required to, or would have decided to, impose life sentences, the court shall—in the case of future life prisoners—impose only a single life sentence. Those amendments also provided that, in the case of existing life prisoners and existing transferred life prisoners, the court shall treat the offender as if he or she were subject only to a single life sentence.

Amendment 19 brings such life prisoners who are transferred to Scotland from other parts of the UK after the bill comes into force into line with existing transferred life prisoners and existing and future lifers who are convicted in Scotland. Where such a prisoner is convicted of two offences for which a life sentence would be imposed and which would have been libelled on the same indictment, and is then transferred to Scotland, he will be treated as if only one life sentence had been imposed and consequently only one punishment part will be set.

I reassure Mr Gallie and other members that the punishment part will reflect the seriousness of all crimes that are libelled on an indictment—or corresponding document—for which the life sentence was imposed, and of any other offences of which the offender was convicted on the same indictment.

I move amendment 19.

Photo of Phil Gallie Phil Gallie Conservative

Having accepted the minister's earlier comments and assurances, it would be inappropriate for us to force a vote on amendment 19. We accepted it earlier and we accept it now.

Amendment 19 agreed to.

Photo of George Reid George Reid Scottish National Party

Amendment 20 is grouped with amendments 24, 25, 27, 33 and 36.

Photo of Iain Gray Iain Gray Labour

The amendments in the group all relate to an issue that Gordon Jackson raised at stage 2. He asked what provision there was for prisoners who required to have a punishment part set, but who are incapable of properly instructing a solicitor because of mental illness. We have considered carefully the point that Mr Jackson raised.

Amendments 20, 24, 25, 27, 33 and 36 will have the effect that when a life prisoner's case comes before the court for the setting of a punishment part, and the court is satisfied that the life prisoner—by reason of mental disorder or inability to communicate because of physical disability, which cannot be made good by human or mechanical aid—is unable to provide instructions to his solicitor, the court will not set a punishment part.

The prisoner will continue to be detained until such time as he becomes well enough to instruct a solicitor. Such prisoners are unlikely to be able to be returned to prison, but as soon as they are considered capable of instructing legal representation, their case will be referred back to the High Court for a punishment part to be set.

If such a life prisoner was never considered capable of instructing legal representation, and so could not have a punishment part set, but was deemed to be no longer detainable on mental health grounds, consideration could be given at that point to release on licence on compassionate grounds.

I hope that the amendments address the issue that Gordon Jackson raised.

I move amendment 20.

Photo of Michael Matheson Michael Matheson Scottish National Party

I note from the minister's comments, and also from amendments 20 and 24, that there is a definition of what is meant by "incapable". Will the minister expand on the process that courts will use in deciding whether somebody is incapable? What assessment process or tests will apply? I understand that the courts currently use various systems. I would welcome clarification from the minister on the mechanism that will be used by the court to decide whether a person is incapable.

Photo of Iain Gray Iain Gray Labour

The prisoner will be called to the High Court and it will be for the court to make the decision. It will use the same means, including background reports and psychiatric reports, as it would do if it were, for example, making a decision about whether someone was fit to plead: it would use the means that it wanted to use. The decision will be based on the wording in amendment 20, but it will be taken in the High Court.

Amendment 20 agreed to.

[Amendments 21, 41 and 3 moved—[Mr Jim Wallace]—and agreed to.]