Prison Sentences (Early Release)

– in the Scottish Parliament on 27th November 2012.

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Photo of Lewis Macdonald Lewis Macdonald Labour

2. To ask the Scottish Government what changes it will make in relation to people who have been released from prison early and then reoffend before the end of their original sentence. (S4T-00146)

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

The Scottish Government intends to legislate through the criminal justice bill that will be introduced to Parliament next year to simplify the law relating to the powers of the court to impose consecutive sentences on offenders who are still serving sentences for previous offences. Under the current law, the courts have a power to impose an order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which provides the court with the discretionary power to return an offender to custody as a punitive measure. In addition, the court has discretion to decide whether the sentence for the new offence should run consecutively to any section 16 order that has been imposed. That means that the court is able to impose a section 16 order and a sentence for the new offence that run consecutively.

However, although those powers are already available to the court, we have looked at how the law in this area operates and have concluded that it is not as clear as it could be. Our proposed changes will ensure that the courts are clear that they can impose a punishment so that the offender completes their previous sentence before the sentence for the new crime starts. Parliament will be given the opportunity to consider and scrutinise the provisions when the bill is introduced.

Photo of Lewis Macdonald Lewis Macdonald Labour

Is the cabinet secretary’s intention simply to amend the 1993 act, which he mentioned in his reply, or does he believe that other statute requires to be amended? Can he tell us why he believes that the existing statute does not provide guidance that is clear enough for the judiciary? Can he offer examples and point to cases in which it is clear that the existing provision has not been properly understood or has not been acted upon according to the intention of Parliament? Can he tell us whether he was asked to produce reform in this area by the Lord President or others who are involved in our criminal justice system and what the genesis of the proposal might be?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

The law is clear, and we have stated what the 1993 act prescribes. It is a rather complex area of law that has caused difficulties for some on the bench. We believe that the law would be enhanced by being simpler and more understandable not simply to those with legal qualifications, but to laypeople who have commented. We believe that the current law is adequate but is unclear and would benefit from being clearer.

We have discussed these matters with others in the legal family, if I can put it that way. The issue has also been driven by people who have been the victims of crime who have discussed it. We believe that, although some aspects of law are, by their very nature, complex and require those with specialism to understand them, it is in the best interests of our society that the law should be as clear as possible and, preferably, understandable to all. The bill will clarify the law to make it more understandable and clearer not simply for the judiciary, who are required to implement and act on it, but for the man and woman in the street, who sometimes has to look to the law for comfort and solace.

Photo of Lewis Macdonald Lewis Macdonald Labour

I share the cabinet secretary’s hope that we will see clarity and transparency. What is his response to the victims of crime who say that the existence of concurrent sentences is an obstacle to justice in their circumstances? Given its nature, is not the matter the sort of thing that the Scottish sentencing council might be able to address? If he agrees with that, when does he intend to implement the Criminal Justice and Licensing (Scotland) Act 2010, which allows such a council to be established?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

The member raises two matters. Concurrent sentences have formed part of the law of Scotland for many a year—centuries, I presume. I do not know whether Mr Macdonald is suggesting that concurrent sentences should not be allowed in any circumstance, but it appears to us that such matters are best dealt with by the judiciary. In our society, it is the judiciary who impose the appropriate sentence, having heard the facts or, indeed, the case. We will retain that, but where complexities exist to do with concurrent and consecutive sentences, and where the 1993 act appears to be rather complex and difficult to read, our law will be enhanced by making the position clearer.

We remain committed to setting up the Scottish sentencing council, on which the Parliament has legislated. I spoke to the Lord President just last week about on-going work on the council’s establishment. Options and costs for the council are under consideration and a decision will be made in due course, in dialogue—of course—with the judiciary, who have a fundamental part to play in the council.

Photo of David McLetchie David McLetchie Conservative

I agree with the cabinet secretary when he says that the law needs to be clear and understandable to all. Would we not get that clarity if we ended automatic early release? If we did so, we would not need to have all the elaborate provisions that the cabinet secretary has just outlined to Mr Macdonald.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

How did I know that Mr McLetchie was going to ask that? I never tire of him asking the question or of me responding that unconditional automatic early release was brought in by a Conservative Government many years ago. He will be glad to know that, thankfully, this Government has taken steps to ensure that such release is not unconditional. Equally, we remain committed to following the quite sage advice of the McLeish commission, which indicated that it was of the view that automatic early release should go, but that various triggers and criteria would have to be met, such as giving consideration to the impact on the judiciary, the Scottish Prison Service and—not least—social work departments. Those criteria and conditions have not been met. On that basis, despite the fact that there has been appropriate tinkering to ensure that matters are improved, we must live with what a Conservative Government imposed on us many years ago.

Photo of Sandra White Sandra White Scottish National Party

As one of the laypeople the cabinet secretary mentioned, I was very interested in his answers.

What is the average length of custodial sentence for those who are convicted of serious crimes such as handling offensive weapons?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

We should put it on record that progress is being made. Statistics have shown that violent crime is at a 30-year low. Yesterday, when I announced the increase in the maximum sentence for possession of an offensive weapon from four years to five years, I indicated that the average sentence for knife crime and handling of weapons was nine months. At 9.30 this morning, we published statistics that show that the average sentence for such crimes is now 10 months.

Despite the progress that has been made, we still face problems with a minority who seem to think that they can carry weapons with impunity. They should realise that we have tough laws, which are getting tougher. Our visible police presence will enforce the law through stop and search. The courts are taking the appropriate action to implement what we, as a Parliament, believe is necessary to target the misuse of weapons that damages many communities.