Management of Offenders (Scotland) Bill: Stage 1

– in the Scottish Parliament on 7th February 2019.

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Photo of Christine Grahame Christine Grahame Scottish National Party

The next item of business is a debate on motion S5M-15733, in the name of Humza Yousaf, on the Management of Offenders (Scotland) Bill.

I trust that this will be a more sedate part of the afternoon.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I am always sedate, Presiding Officer.

I welcome the stage 1 debate on the Management of Offenders (Scotland) Bill, and am very pleased to open it.

The bill introduces a number of reforms that are designed to deliver on the Scottish Government’s commitment to reducing reoffending, and to ensure that Scotland’s justice system will retain its focus on prevention and rehabilitation, while enhancing support for victims.

As members will no doubt know, part 1 of the bill provides for expansion of electronic monitoring, as part of our continuing development of community-based alternatives to prison. The electronic monitoring provisions of the bill provide an overarching set of principles for imposition of electronic monitoring. The bill provides clarity on when and how electronic monitoring can be imposed by the courts in relation to criminal proceedings, or by the Scottish ministers in relation to releasing people on licence from detention or imprisonment. It creates a standard set of obligations that clearly describe what is required of an individual who is subject to monitoring.

The bill will also empower ministers to make regulations to specify the types of devices that can be used for monitoring. The introduction of new technology such as global positioning system technology presents opportunities to improve the effectiveness of electronic monitoring—for example, through use of exclusion zones. That could offer victims significant reassurance and, indeed, respite.

Part 2 of the bill provides for progressive reforms to the system of disclosure of previous convictions. The reforms aim to strike a much better balance between improving the life prospects of people with convictions and the important need for public safety. The proposed reforms will reduce the length of time for which most people with convictions have to disclose their offending history, bring more people within the scope of the protections not to disclose at all, and make the regime more transparent and easier to understand. The reforms will unlock untapped potential in Scotland’s people by helping individuals to move on more quickly from their offending behaviour, which will assist the economy, improve people’s life chances and reduce reoffending rates. I hope that, ultimately, it will mean that there will be fewer victims.

Photo of Daniel Johnson Daniel Johnson Labour

I accept the cabinet secretary’s points about disclosure and electronic monitoring. However, will he accept that, in order properly to achieve the objectives including rehabilitation, a much broader suite of assistance, beyond disclosure and electronic tagging, must be provided to people who leave prison?

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I have heard Daniel Johnson make similar points at committee meetings. He is absolutely right: there is an onus on the Government and on all stakeholders to think about wider support. The measures in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, which we debated on Tuesday, and in the Management of Offenders (Scotland) Bill can never be viewed in isolation and will always be part of a wider suite of assistance. I agree with the point that Daniel Johnson articulated well.

The parole system is the focus of part 3 of the bill. The Parole Board for Scotland reforms will deliver on the Scottish Government’s commitment to

“improve the effective rehabilitation and reintegration of people who have committed offences and complete the implementation of the parole reform project to modernise and improve support for the vital work of the Parole Board”.

The bill also aims to simplify and modernise processes and to support a consistent approach to parole matters and the Parole Board for Scotland. Specifically, the bill will amend the tenure of board members to bring it into line with that of other tribunals; it will reinforce the independence of the board; and it will provide for the administrative and accountability arrangements of the board to be set out in secondary legislation.

I welcome the Justice Committee’s comprehensive report. I will now set out the Government’s thoughts on some of the important matters that are raised in it.

The committee asked for an early review of whether home detention curfew guidance for governors is striking the right balance, and it sought reassurances from the Scottish Government that lessons that have been learned from the reports by Her Majesty’s inspectorate of constabulary in Scotland and Her Majesty’s inspectorate of prisons in Scotland will be applied to other areas in which electronic monitoring might be used.

Members will be aware that, following the tragic murder of Craig McClelland, the inspectorates made 37 recommendations on home detention curfew, which the Scottish Government, the Scottish Prison Service and Police Scotland accepted in full. Guidance on HDC was updated in October 2018, following the recommendations, and there was an initial decrease in the number of people who were granted release on HDC. We responded immediately to the issues that were raised in the independent reports by the inspectorates, and the balance of our response was, of course, in favour of public safety. We are continuing to assess the impact of the presumptions that were introduced in that guidance. An extensive review of the guidance on HDC, which was one of the inspectorates’ recommendations, is under way.

HDC release decisions must have regard to protection of the public at large, to prevention of reoffending by the prisoner and to securing of successful reintegration of the prisoner into the community. We are led by the best available evidence about how to weight those considerations. The considerations are in some ways complementary—for example, rehabilitation is an important way of protecting the public from people who reoffend. I am happy to reassure Parliament that any lessons that are learned from other areas of the system will be applied as the electronic monitoring service develops.

Public protection is, of course, a key element of the criminal justice system. As the committee requested, I will consider whether key principles and the weight that is given to public protection should be given greater prominence in the bill. However, the need to consider public protection is already set out in the legislation that underpins the HDC and in the HDC guidance. Therefore, it is an existing legal requirement that a risk assessment must always be done prior to the granting of HDC and electronic monitoring of an individual under an HDC licence. I have already written to the Justice Committee with further information on the ongoing work on risk assessment tools.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I will finish this point first.

I am also happy to take forward the suggested discussions with colleagues from the Scottish Courts and Tribunals Service, and with social work colleagues, on what further information might be made available. I am clear that any changes must be informed by the Risk Management Authority’s advice on the relationship that such information presents to the risk of harm.

Photo of Daniel Johnson Daniel Johnson Labour

Recommendation 5 from Her Majesty’s inspectorate of prisons in Scotland’s report says that

“Given the additional HDC licence conditions were not monitored, it was doubtful that they served any purpose.”

I hear what the cabinet secretary says about risk management and the considerations. Surely monitoring is just as important. Is he satisfied that that is now in place?

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Yes, I am satisfied not just that the appropriate lessons from the inspectorate’s report have been learned, but that changes are under way and are being made by the organisations—primarily, the Scottish Prison Service and, where necessary, Police Scotland. Daniel Johnson need not take my word for it. On the back of the reports, I have been keen to stress that my expectation of and request to the inspectorates is that at the six-month mark they follow that up as independent inspectorates. I will, of course, then be happy to present their findings to Parliament.

I have already written to the Justice Committee with details of the revised guidance for criminal justice social work on responding to breaches. That guidance clarifies a number of key roles and terms in the process. I have also said that at stage 2 I will give the committee more information about our plans for creation of an offence of being unlawfully at large.

The committee sought our view on whether extension of electronic monitoring will result in more punitive sentencing. We do not believe that that will be inherent in the extension. Ultimately, sentencing decisions are for the courts. The new GPS and remote substance monitoring capabilities extend the range of options that are open to the courts. We will continue to collect data on how the new capabilities are used.

The committee also asked what additional resources have been made available for implementation of the bill. It is not anticipated that the bill, as it is currently drafted, will immediately lead to a large-scale change in the manner in which electronic monitoring is used by the courts. However, if and when pilots of the new technology are taken forward, appropriate funding will accompany them. I can confirm that the budget for electronic monitoring has increased to £6 million, in anticipation of such changes.

In part 2 of the committee’s report, a specific recommendation highlighted a concern that had been raised by Scottish Women’s Aid on ensuring continuing appropriate levels of disclosure for people who have been convicted of domestic abuse offences and other similar types of offence. I can confirm that steps are being considered for a future disclosure bill, which will be concerned with the higher-level disclosure system in order to ensure that appropriate disclosure continues with no unintended consequences on higher-level disclosure resulting from changes to the system of basic disclosure in this bill. MSPs can be reassured that that consideration will be informed by feedback that is offered.

I note the committee’s view in part 3 of the report that victims should have a role in the parole process, and its comments that the bill is progressing while detailed consideration of the Parole Board is under way through our consultation paper, which we published on 19 December.

Photo of Liam Kerr Liam Kerr Conservative

The cabinet secretary mentioned Scottish Women’s Aid. Does he share its view that cutting off a tag should be an offence?

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I will listen to what Scottish Women’s Aid and members have to say. To give credit where it is due, I note that the Conservatives pushed the Government and others to consider a person’s being unlawfully at large becoming an offence. I said in my speech that serious consideration has been given to including that in an amendment at stage 2. We have to be careful about terminology in respect of when a person technically becomes unlawfully at large, versus the moment when they cut off a tag. There is a nuance there. I have a good relationship with Scottish Women’s Aid, so if it and members have views on the matter, I will listen to them. I intend at stage 2 to lodge an amendment on making being unlawfully at large an offence.

Photo of John Finnie John Finnie Green

I am grateful to the cabinet secretary for taking an intervention. Does he acknowledge that there is currently a role for victims in the parole system? It is not the case that something is being introduced that does not already exist.

The Deputy Presiding Officer:

Before you respond, cabinet secretary, I say to members that there is time in hand, so do not be anxious. If you take interventions, you will have that time made up to you.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Thank you.

We know that representations can take different forms depending on the case, but there is an opportunity to make representations to the Parole Board. I record my thanks to the Parole Board, which does a really difficult job. All of us in the chamber recognise that making such decisions is no easy thing, but the manner in which the board does so is to its credit. I have spoken to many members of the board in my time as cabinet secretary, and they all recognise that there could be significant improvement, including with regard to hearing the voice of victims. John Finnie made a hugely important point.

I have held a number of meetings with victims and their families. From speaking to them, it is clear that they want a greater voice in the parole system. We are always looking at ways to improve things, which is why parole processes are kept under continual review. Those meetings have directly informed the content of the consultation that is under way.

I listened carefully to evidence that was given and to the committee’s view on removal of the psychiatrist member of the Parole Board. However, I feel that the board currently has the expertise that it needs to assess cases appropriately without there being a statutory requirement for a specific type of member. I will, however, seek the views of the Parole Board on how we might further enhance the role of psychiatrists and other mental health professionals in its assessments.

I turn briefly to tests for release. Statutory tests exist, as members probably know, for life-sentence prisoners and people who have equivalent sentences, including those on orders for lifelong restriction and recalled extended-sentence prisoners. However, I am not convinced that a standard test is necessary for all other categories of determinate-sentence prisoner. A common test would have to work for each category of prisoner who would be considered by the board, including those who are subject to transfer under the Mental Health (Scotland) Act 1984, and young offenders and children who are subject to a period of detention.

There are reasons for having a test for the release of life prisoners and extended-sentence prisoners who have been recalled—namely, that they are potentially held in custody beyond the punishment part or custodial part that the court sets. I do not believe that we should assume that because a statutory test exists for release of some categories of prisoner, one must exist for all prisoners and be set in identical terms. The nature of a life or extended sentence is different from that of a determinate sentence. In response to the parole reform consultation, the Law Society of Scotland was against the introduction of a common statutory test for all prisoners, and highlighted the reason why certain types of sentence must be treated differently.

A test for release of each category of prisoner being set out in legislation would determine the scope of any decision by the Parole Board. However, I believe that the Parole Board should be able to consider and weigh any factors that it thinks are relevant. Rule 8 of the Parole Board (Scotland) Rules 2001 sets out in legislation matters that can be taken into account by the board in dealing with a case. However, it does not provide a definitive list, so the Parole Board may take into account any other factors that it considers to be relevant.

Although I agree that further information being available on the array of factors that the Parole Board can take into account might be useful and could be published elsewhere, such as in guidance, I do not believe that setting out a test in legislation for each category of prisoner is the best way to achieve that.

The bill will make a number of important changes to improve the criminal justice system. I am pleased to note that the Justice Committee recommends that the general principles of the bill be agreed to at stage 1.

I move,

That the Parliament agrees to the general principles of the Management of Offenders (Scotland) Bill.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I am pleased to speak on behalf of the Justice Committee in today’s stage 1 debate on the Management of Offenders (Scotland) Bill. I thank all those who provided the committee with written or oral evidence. The committee also thanks the Wise Group and G4S for hosting a visit that helped members to understand more about the use of electronic monitors or tags, and the impact of disclosing prior convictions. That gave us an opportunity, at the very beginning of our consideration of the bill, to hear at first hand about the challenges that people with prior convictions face in trying to reintegrate into society. I also thank the Justice Committee’s clerks and past and present committee members for their work in producing our stage 1 report.

Before I move on, I would again like to offer the committee’s condolences to the family and friends of Mr Craig McClelland. Craig’s tragic murder led to two independent reviews by HM inspectorate of prisons for Scotland and HM inspectorate of constabulary in Scotland. In June 2018, the committee suspended its stage 1 scrutiny until the important review findings became available. Our thoughts were very much on Craig when we finalised our recommendations, and I confirm that our stage 1 report takes into account the findings and recommendations of both reviews. The Cabinet Secretary for Justice has stated that he fully supports and will implement all the reviews’ recommendations. The committee has made it clear that it will hold him and others, such as the Scottish Prison Service and Police Scotland, to those commitments and, crucially, that it will press for swift implementation of the recommendations.

I turn to part 1 of the bill, which proposes changes to the use of electronic monitoring. It will allow the Government to expand the use of EM and to bring in new technologies, such as GPS and transdermal technology, which can help to monitor people with drug and alcohol problems. The committee recognises that, where EM is used as an alternative to custody, it is necessary to balance any potential benefits against the need for public protection. Although, on balance, the committee supports part 1 of the bill, in doing so, members added a number of vital qualifiers to that support.

The committee recognises that the weight that is given to the considerations of public protection, punishment and rehabilitation may vary, depending on the different situations in which EM might be used. The committee is decisively of the view that EM should be used only after a comprehensive risk assessment has been carried out, particularly in relation to home detention curfews and other orders under which the individual would otherwise be incarcerated.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I do not disagree with the committee’s recommendations, but does Margaret Mitchell agree that, even if all the recommendations are put in place—as they will be—and the HDC regime and the other electronic monitoring regimes are more robust, that will not necessarily completely eliminate the risk?

Photo of Margaret Mitchell Margaret Mitchell Conservative

Absolutely. There are no situations in life in which risk can be totally eliminated. Having said that, the assessment measures must be absolutely robust, especially when it comes to HDCs. Robust risk assessment procedures are critical to the use of HDCs and electronic monitoring.

The committee calls on the Scottish Government to liaise with the Scottish Courts and Tribunals Service on the provision to criminal justice social workers of summaries of evidence from court cases, to inform the preparation of any risk assessments. We found it a little worrying that they have sometimes had to rely on information from the offender themselves. It is critical that, as part of the sentencing process, a robust professional needs risk assessment is carried out on the suitability of an individual for EM. There also needs to be careful risk assessment practice, including home visits, to inform decision making about EM curfew arrangements.

The committee calls on the Scottish Government to consider whether key principles, and the weight that should be given to public protection and risk assessment, should be given greater prominence. That includes assessing whether there should be risk assessment provisions in the bill, as well as provisions on the monitoring of people on electronic tags. I think that the cabinet secretary said that he was prepared to look at that.

Monitoring and evaluation are important issues, particularly given the findings of HMIPS, which noted that where an individual’s release on HDC was made subject to additional conditions, there appeared to be no monitoring of compliance. The committee considers that to be unacceptable. Consequently, it recommends that additional conditions be accompanied by monitoring arrangements, which are agreed to and put in place in advance and clearly annotated on the licence. If that is not possible, the committee recommends that serious consideration be given to not granting HDC.

The committee calls on the Scottish Government to consider making provision in the bill that requires the Government to consult on, produce and maintain statutory guidance on the roles and responsibilities of relevant agencies with regard to risk assessment and monitoring, or conditions that relate to the use of electronic monitoring.

On breaches of electronic monitoring orders, the committee recommends that breaches are swiftly investigated and, when they are found to be substantive—when they not due to a technical fault, for example—that they are responded to quickly and effectively. The committee notes the powerful evidence from Scottish Women’s Aid and others, which expressed concerns about the use of GPS and exclusion zones in cases that involve domestic abuse or sexual offences. Those concerns focused on how breaches will be responded to in real time when an offender enters an exclusion zone.

The public will not have confidence in the use of EM if the relevant authorities are not seen to investigate all breaches swiftly and to respond without delay to substantive breaches. The committee wants to see progress made on the development of the new risk assessment tool and seeks details before stage 3, as well as statutory guidance on the roles and responsibilities of the different agencies and how they work and communicate together.

The committee supports in principle the introduction of the new offence of being unlawfully at large, whereby someone has breached their home detention curfew and perhaps removed their tag. However, given the divergence of opinion between Police Scotland and the Law Society of Scotland about the merits of the new offence and the wider police powers of entry and search and other related issues, the committee will consider the amendment that the Government proposes to lodge at stage 2, which would not preclude the committee from taking further evidence.

Part 2 deals with changes to the basic regime for the disclosure of convictions. The changes do not affect high-level disclosures, whereby checks are made for some categories of employment and proceedings, which require greater scrutiny of an individual’s background. However, the committee calls on the Scottish Government to respond to the comments of Scottish Women’s Aid that clarity is needed on the possible impact of the changes on high-level disclosure of some categories of domestic abuse offences.

A delicate balance needs to be struck between risk and the need integrate people with prior convictions back into society. Very real challenges are faced by people in relation to disclosure—getting beyond the initial application itself is a challenge. The committee therefore welcomes the efforts to tackle the issue of people not even being interviewed to see whether they are suitable for employment, merely by dint of their having ticked a box that discloses a prior conviction.

During our visit to the Wise Group in Glasgow, the committee heard evidence from people with prior convictions and their prison mentors that putting a monitor on someone and then releasing them into the community with no money, no job, nowhere to live and no access to general practitioner services or—if they need it—drug or alcohol support is simply setting them up to fail.

The committee considers that there is a danger that the good intentions of the Scottish Government in relation to increased electronic monitoring will not succeed if the people who are wearing the devices are not fully supported and adequately monitored, including through rapid and effective responses to breaches. Insufficient resource provision might result not just in a failure for individuals who are wearing the device; it could also represent an increased risk to the community.

Today’s comments by the cabinet secretary notwithstanding, the committee urges him to consider resourcing. All members agreed that the Government must make clear what additional resources can be set aside in 2019-20.

The committee supports the general principles of the bill.

Photo of Liam Kerr Liam Kerr Conservative

I am pleased to have the opportunity to speak for the Scottish Conservatives on the Management of Offenders (Scotland) Bill. We will vote in favour of the principles of the bill, but I must be clear and unequivocal that our stage 1 support comes with significant caveats and that any further support is highly conditional.

The bill is in three parts and I will deal with them in reverse order, but by ease of disposal. Part 3 makes small reforms to the Parole Board, removing the requirement to include a high court judge and a psychiatrist, as well as moving to a five-year term for members. I have no problem voting for that, but with respect, I suggest that part 3 of the bill is a missed opportunity.

Last summer, in response to several tragic events, I joined the Stewart family in calling for Michelle’s law. Indeed, I led a member’s debate on the topic, in which I set out the campaign’s three demands, including that parole reform go further to give victims a greater say over temporary release from prison and parole. In response, in December, the Government announced that it planned to consult on the openness and transparency of the Parole Board and the involvement of victims of crime in its work.

I also recall that the committee heard evidence from People Experiencing Trauma and Loss—PETAL—who suggested that victims of crime should have a place on each parole board and hearing. The committee also recommended that further work be done to consider the tests used by the Parole Board when releasing a prisoner. However, all that work will be undertaken separately.

We will support what is being done in part 3 of the bill, but I cannot help but feel that it was an opportunity to take a step back, review the whole Parole Board and its operation and introduce a bill directly related to it. We are still awaiting some movement from the Government on the equally distressing process of temporary release.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Liam Kerr knows that I take what he says on the issue very seriously. I, too, have met the Stewart family.

I wonder whether Mr Kerr accepts that part of the concern is that we have already delayed the bill—understandably, because of the inspectorates’ reports on HDC—and that to delay it further for consultation on the Parole Board, at a time when the committee is already under legislative pressure, would be the wrong move.

Much of what the Stewart family has asked for, and some of the other issues, does not need legislation. Does he agree that delaying the bill would be the wrong move, given that we can achieve much of what he and the families want without legislative delay and the fact that the Parliament does not have much time?

Photo of Liam Kerr Liam Kerr Conservative

I understand the cabinet secretary’s point, which is reasonable. Equally, I am sure that he will understand the point, which I will make several times in my speech, that there has been a missed opportunity, because we have three standalone things happening in one bill that could have been better dealt with separately.

Part 2 of the bill could also easily have commanded its own separate bill and inquiry. The move to reduce—sometimes—the length of time for which one is required to disclose convictions makes sense, as does the improvement in the clarity of legal terms. We know that getting a job and making that contribution to society is one of the best routes out of offending behaviour. I recognise the cabinet secretary’s comments on that. It is difficult to strike the appropriate balance between the right of society or an employer to know about prior convictions and the ability of a person with convictions to move on.

It was right to refer to the regime change in England and Wales for reference and it is right to ensure that the change applies only to the basic disclosure regime. As the committee convener said, it is also right that the higher-level disclosure system is not being considered at this stage. However, I note with concern that there are plans for reform in that area. I flag up to the cabinet secretary that the report states:

“the absence of any proposed changes to the higher level disclosure system was welcomed by a number of witnesses”.

It certainly was and I will take a great deal of persuading to agree to downgrade any such protections around higher-level disclosures if that comes to us for consideration.

It is a little unfortunate that part 1, which is the crux of the bill, is not a separate bill. Part 1 concerns the use of and provision for the electronic monitoring of offenders. I reiterate that we will support the bill—and by extension part 1—at this stage, but I must be clear and unequivocal that I did not take that decision lightly, and I know that my party colleagues will not take it lightly this afternoon. We support the bill at stage 1 only on the strict understanding that we see the opportunity to improve it at stages 2 and 3. I put down the marker that, if we do not see at stages 2 and 3 amendments that go far enough, we will not support the bill.

The Law Society of Scotland put it succinctly:

“Maintaining public safety is essential in whatever way that electronic monitoring is intended to be used”.

That must surely be the starting point: that we enhance and protect public safety. I need not remind anyone in the chamber of the reasons why the bill process was delayed and further evidence was taken. The shocking, unprovoked and devastating murder of Craig McClelland by James Wright, who had 16 convictions, was out on home detention curfew, had tampered with his tag and had roamed around uninhibited for six months, provides vital and awful context to the debate and the bill. It raises issues about not just home detention curfew, but the wider use of tagging for all underlying orders and licences.

To digress slightly, the cabinet secretary will recall that Daniel Johnson, Willie Rennie and I wrote to him in November last year to demand an independent inquiry into that case. The family wrote to the Lord Advocate yesterday, as I do not think that they have heard anything, so perhaps the cabinet secretary will take the opportunity in closing to update the family and the Parliament.

As we have heard, against that background, two reviews of the home detention curfew regime were conducted. They made various recommendations, which included strengthening the risk assessment process for HDC. The cabinet secretary told the committee that he had ordered a presumption against HDC for violent criminals and that he would consider the option of putting that in statute. The committee’s report picks up the fact that whether the presumptions should be statutory exclusions will be examined before May. That is too long to wait. The bill is going through now, and we are being asked to pass it without knowing what is coming and whether the full protections are in place.

I understand that any new offence would apply only to HDC. As the bill stands, an offender who has another underlying order or licence could cut off their tag without automatically committing an offence, because the offence would hinge on the underlying order. I do not think that victims will accept that; that needs to change. Victim Support Scotland, Community Justice Scotland and Positive Prison? Positive Future were crystal clear to the committee that there must be a swift and visible zero-tolerance approach to breaches. When a breach occurs because of the removal of or tampering with the electronic tag, it must be an offence, regardless of whether the person has a custodial or community sentence. I heard the cabinet secretary’s comment that we will learn more at stage 2, but the amendments that I refer to must be agreed to at stage 2, and the public safety angle must be suitably scrutinised.

In the committee, I was terribly exercised—I was not alone in this—by the lack of the risk assessment tool at this stage. We heard that the Government agrees that the guidance document requires extensive review to give more assistance to those who are charged with undertaking the assessment on releasing prisoners, but the guidance is not ready. The cabinet secretary will remember that the committee looked at that; I do not understand the situation. Surely, before we do anything to increase the numbers who are on electronic monitoring, we must have a robust and trusted assessment tool. That needs to be addressed before the bill is passed.

On the decision-making process, I will raise something that I struggled to understand throughout. No matter whom or which agency I asked whether public protection, punishment or rehabilitation is most important in considering release on HDC, I got an equivocal answer. No one said that public protection is paramount, which I do not understand. The cabinet secretary said that he would consider whether public protection should be given greater prominence in the bill and I can help—it should be.

My overriding concern, particularly because the bill remains unchanged from its initial form before all the learnings that came from tragedy, is that the cabinet secretary’s predecessor introduced the bill in an atmosphere of—dare I say it—complacency and with a view to extending tagging to inappropriate cases, which was perhaps driven by the simple wish to empty prisons.

The landscape has changed fundamentally, and our continued support is predicated on reassurance that the bill is about getting the regulation of tagging right and protecting public safety. We must put electronic tagging on a basis that can command public support and we must learn the lessons of tragic cases like that of Craig McClelland.

Following a good inquiry, the committee heard many promises from the cabinet secretary. Those promises must be kept, and we must see the further changes that we are calling for. If, over the course of parliamentary scrutiny, it looks like it will be the opposite, we will vote against the bill.

Photo of Daniel Johnson Daniel Johnson Labour

I thank the clerks and my fellow committee members. It is always important to do that, but particularly in these circumstances. The committee treated a difficult set of circumstances appropriately, by delaying their report and taking further evidence; that was important. I pay tribute to the clerks; it was not an easy report for them to compile and they did an excellent job.

This is an important debate about how we manage people whom we send to prison and what happens to them when they transition back into our community. The expansion of electronic monitoring has the potential to make community justice more effective, by increasing the options that are available to manage and monitor those people who leave prison.

We can gain significant rehabilitation and public safety benefits by transitioning someone back into society with electronic monitoring. However, those benefits must never overshadow the public’s right to be protected. Public safety must be paramount and it must trump all other considerations. That was tragically demonstrated by the circumstances of Craig McClelland’s murder. Failure in the management of offenders can have devastating and disastrous consequences. It is vital that we learn the lessons from the McClelland case.

When the cabinet secretary appeared before the committee, I reflected my feelings of having failed to ask the right questions when we first considered the bill. I failed to ask, “What currently happens when people who are on electronic tags breach those orders?” That was a significant omission, and one that the committee corrected. However, the Government must also recognise its failure to consider some elements in the bill. It needs to re-examine how effectively the orders are used and how effective electronic monitoring is.

From the reports by HMICS and HMIPS, it is clear that in the current system there are profound, systemic failures in process, in interagency communication and, most fundamentally, in the monitoring of people on HDC.

The HMIPS report indicated that a robust assessment process to help identify which prisoners are most suitable for electronic monitoring was not in place and that the SPS was not funded or staffed to undertake the more detailed, multidisciplinary approach that was required. It highlighted that those who made decisions to release an individual on HDC did not have access to all the relevant information, which made it difficult for them to come to an informed decision.

While Labour members support the broad aims and principles of the legislation, it would be a dereliction of our duty as Opposition members not to fully scrutinise whether the bill, as it progresses, has adequately addressed the issues raised by both reports. Importantly, I am unconvinced that the policy changes or the new offence that the cabinet secretary proposed will be sufficient. A number of recommendations—made by both HMICS and HMIPS—might require provisions in the bill or would be enhanced by further legislation. In particular, action on recommendations 5 and 14 of the HMIPS report and recommendations 1 and 9 of the HMICS report need to be examined as to whether statutory guidance and clarification of statutory roles of agencies would help to make the system more robust.

There must also be a robust reporting regime, not just of the use of those measures, but of offences committed by those who are subject to the measures. That need for improved data is underlined by recommendation 21 in the HMIPS report. Furthermore, recommendation 11, which suggests a suspension of HDC for those who give an address outside Scotland, must also give pause for thought as to whether that is ever appropriate, given the interjurisdictional issues that have been identified.

The improvements that we need will not be addressed solely through legislation, but following the tragic circumstances of Craig McClelland’s death, there is a responsibility on us all to ensure that this bill is as robust as it needs to be and that it acts on the serious faults that were found through those investigations.

As a whole, I believe that this bill represents something of a missed opportunity. Much as Liam Kerr set out, there are three separate components which it may have been better to examine on their own and more holistically.

Evidence strongly suggests that managing and monitoring offenders in the community can only ever be successful if it is part of a broader rehabilitation and support package. A simple extension of electronic tagging is far too narrow on its own. The success of electronic monitoring will depend on adequate budgets being in place for criminal social work and the availability of wider services that support people who are subject to such measures.

It is extremely disappointing that the bill does little to address the underlying causes of reoffending. It fails to look at the broader issues of housing, healthcare, employment and other support measures that should be made available to those leaving prison.

From my conversations with prison services and organisations such as the Wise Group and Positive Prison? Positive Futures, I know that they support the view that we need a broader set of changes if we are serious about reform. In particular, I pay tribute to the Wise Group and thank it for making it possible for me to shadow one of its prisoner mentors, which was certainly a revealing experience for me.

Photo of Liam Kerr Liam Kerr Conservative

In terms of what we do next, does the member agree with us that it should always be an offence to cut a tag off?

Photo of Daniel Johnson Daniel Johnson Labour

There are some very compelling reasons to consider that point. The fundamental point is that for those released subject to a condition such as that set out in HDC—in other words, where electronic monitoring is a substitute for incarceration—we must treat that condition as similar to being in prison. In other words, we must treat someone in breach as though they have gone over the prison wall. That is the seriousness with which we should treat the breaching of HDC conditions.

In terms of the wider reform aspects, if people leave prison without knowing where they will live, how they will access medical services or how they will support themselves, we cannot assume that they will not reoffend. To do so is to set them up for failure and it is an absolute dereliction of our responsibilities.

The expansion of electronic monitoring has some significant potential to improve our justice system, but we must go much further than the bill currently does in order to achieve that.

Let me be clear: Scottish Labour will support the bill at stage 1, but that support is not unqualified, nor is it unequivocal. The legislation requires further testing and further scrutiny to ensure that it upholds the very clear recommendations in the HMICS and HMIPS reports.

Photo of John Finnie John Finnie Green

The Scottish Green Party will endorse the principles of the bill tonight and it is supportive of the direction of travel and the growing acknowledgment of the ineffectiveness of short-term prison sentences.

We all agree that we need credible alternatives, first and foremost to prosecution, and then to custody, and that we need to make sure that the appropriate people are locked up and that those who might otherwise not require to be in custody have alternatives. Key to that is having the resource.

One of the challenges, I accept, is that it will be difficult to quantify when that resource transfer takes place. I think that the other opposition parties will also accept that with good grace. Do we take one prison out of the equation? As long as we have the bricks and mortar, we will have that challenge.

The volume of court work that takes place is another challenge. Criminal justice social work plays a pivotal role. We talk about getting a summary of the reasons why a conviction has been upheld; that would be unnecessary if we had a criminal justice social worker in every court for every trial, following every case, with an intimate knowledge of the individual who is coming to court. Significant resources are required, but that is not to say that, in the long term, there are not savings to be made.

Fairly early on in his speech, the cabinet secretary talked about the key aim of the prevention of reoffending and Daniel Johnson talked about some of the causes of reoffending. Of course lack of housing, employment and welfare are pivotal parts of the issue.

Some of my colleagues have been a bit critical of the format of the bill. Odd things are sometimes joined together, but there is a criminal justice element to all parts of the bill.

I commend early intervention as a key part of the issue.

We heard from Leanne McQuillan of the Edinburgh Bar Association that it would be “very concerning” if a private company were to hold details of a person’s alcohol and drug use. Extending to GPS monitoring and the ability to monitor someone’s alcohol and drug consumption may seem straightforward. However, as well as the Edinburgh Bar Association, Dr Hannah Graham from the Scottish Centre for Crime and Justice Research highlighted to us the fact that the privatised model that presently applies in Scotland, and in England and Wales, is out of step with other places to which we would look for examples—we talked this week about the barnahus model. In progressive countries such as Norway, Sweden, Denmark and the Netherlands, the criminal justice system is a public service and not associated with profit. As someone who is deeply offended by the idea that people would profit from their involvement in the criminal justice system, I hope that the cabinet secretary will pick up on that. I may return to it at stage 2.

This is not just about private versus public; it is about the growing volume of data that is available and the perennial issue about who has access to that data, as well as the period of its retention. The existing arrangements already present challenges, such as when an offender who is out in the community finds themselves in hospital, and there is no communication about that. It is not as if the existing arrangements are not sufficiently challenging. I hope that the cabinet secretary considers that.

Concerns have been voiced by the appropriate oversight body, the Information Commissioner’s Office in Scotland, which said that information obtained through monitoring must be processed only for another law enforcement purpose. Elsewhere, we heard the suggestion that there might be challenges around article 8 rights. That is a pertinent factor, which I hope that the cabinet secretary will pick up on.

I want to talk about the astonishing turnaround in figures, and the 75 per cent reduction in the use of HDCs, with a move from a presumption in favour of HDCs to a presumption against. We all have sympathy in relation to the tragic events that brought that about, but we must not have a risk-averse public sector. If we do, it is a case of throw away the key. As the convener of the Justice Committee acknowledged, nothing is entirely risk free. We want informed decisions made with the best possible, timely information. I hope that we see a turnaround on that. I fear that risk assessment will become a tick-box exercise that is unable to pick up on the peculiarities of an individual’s circumstances, the wide range of factors that may impact on the likelihood that they will breach their bail conditions and the trying circumstances that they may find themselves in while in custody.

Do I have more time, Presiding Officer?

Photo of Linda Fabiani Linda Fabiani Scottish National Party

I am so sorry, Mr Finnie. I was involved in something else terribly important. I can give you an extra minute.

Photo of John Finnie John Finnie Green

Thank you.

I want to talk about the disclosure of spent convictions. There is wide recognition that the bill represents progress, although some, including the Howard League Scotland and Dr Hannah Graham, say that we could go further on that. We want people to leave custody without stigma. Like other members, however, I commend the words of Dr Marsha Scott about the significant difference that there is around disclosure regarding domestic abuse. I will leave it there.

The Deputy Presiding Officer:

I call Liam McArthur. You have seven minutes, Mr McArthur. [


.] I am sorry—I am all over the place this afternoon. You have six minutes.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I will not pass comment on that, Presiding Officer.

Like others, I thank colleagues, the Scottish Parliament information centre and the clerks for supporting our scrutiny of this important bill; I also thank all those whose written and oral evidence informed the scrutiny process.

As Daniel Johnson and others have reminded us, it has taken us rather longer to get to this point, following the committee’s decision to delay proceedings pending the outcome of the two inquiries that the justice secretary commissioned into the tragic circumstances surrounding the brutal murder of Craig McClelland. That was absolutely right and proper. C learly there is a limit to how far the bill can provide the answers that the McClelland family are rightly seeking, but that only underscores the need for a fatal accident inquiry into that case. As we now know, there are 127 outstanding FAIs dating back as far as 2010; the impact that those delays must be having on families who have lost loved ones is unimaginable, but they also prevent lessons from being learned and, where necessary, laws from being changed. That cannot be right or acceptable.

As far as the Management of Offenders (Scotland) Bill is concerned, we need to be careful to manage expectations about what electronic monitoring can and will achieve. Ultimately, we are talking about monitoring and management rather than control and prevention. Moreover, as we heard repeatedly in evidence, the measures can do little to help with rehabilitation or reintegration if no other support is in place. It is critical that that is properly explained and understood, because if Government and its agencies do not get that communication right, there is a real risk of public confidence being undermined.

Of course, at the heart of decisions on the appropriateness of electronic monitoring lie assessments and judgments of risk. For those assessments to be robust, information and expertise have to be appropriately gathered and shared. For example, seeking views from everyone who might be affected, including family members, will be important in assessing the suitability of an individual for electronic monitoring. As the committee convener reminded us, it was concerning to hear how, in compiling their reports, criminal justice social workers often rely on information provided by an offender in the absence of summaries of evidence narrated in court. That issue needs to be addressed.

The committee also heard evidence from various witnesses about the importance of ensuring that breaches carry consequences. Victim Support Scotland talked about the need for

“clear implications for infringement of a buffer zone”, while Karyn McCluskey of Community Justice Scotland observed that

“Non-compliance needs to be dealt with robustly, otherwise it will just increase”.—[

Official Report, Justice Committee,

8 May 2018; c 15.]

Such calls are understandable, as is the case that has been made by Police Scotland for creating a separate offence of remaining unlawfully at large. That view has obviously been given added weight by the findings of the two inspectorate reports last autumn, but as the Law Society rightly cautions, the detail of any such provision will need careful and robust scrutiny, as will proposals for extending police entry and search powers. I have no difficulty at all with looking at how to improve the bill’s provisions in that area, but I suspect that we might need to take further oral evidence on the specifics of whatever the Government comes forward with at stage 2.

I will highlight a couple of other concerns that were raised repeatedly with the committee during our evidence gathering, starting with the need to avoid simply adding electronic monitoring to existing community sentences. It was reassuring to hear the justice secretary acknowledge the risk of what the Howard League and others referred to as “uptariffing”. Ultimately, electronic monitoring should be about supporting efforts to find robust alternatives to imprisonment; it should not merely be an add-on to restrictions on those already deemed suitable for community sentences.

The second recurrent theme, which I think all colleagues who have spoken in the debate have mentioned, was that electronic monitoring will be effective only if it is used alongside other support. For example, Families Outside felt that the bill focused solely on surveillance and monitoring, adding:

“Without structured supports in place,” electronic monitoring

“becomes a purely punitive measure that fails to address the reasons for the offending or to reduce the likelihood of breach due to pressures of unstable housing, substance misuse, poverty, chaotic environments, and damaging relationships.”

That is a salutary warning and, again, something that needs to be addressed at stage 2.

I am also keen to explore further how far we might go in using electronic monitoring to reduce the high numbers of people who are held in prison on remand. I recognise that including it as a bail provision is not straightforward, but as the Law Society has reminded us, electronic monitoring would be “cheaper and ... more efficient” than imprisonment, with all the disruption to work, family relationships, housing and so on that that entails.

My final point on the electronic monitoring provisions in the bill is to record my anxiety about the massive reduction in the use of home detention curfew that we have seen over recent months—I echo the concerns that were expressed by John Finnie in that regard. The reasons for that reduction are perhaps not entirely clear at this stage, but it appears that there is now greater risk aversion in the system, and the fact that there are now categories of offence in respect of which HDC cannot be considered has also undoubtedly had an effect. I understand that, but moving away from a system that allows for a managed transition of offenders back into the community carries inherent risks not only in terms of rehabilitation but because it puts added pressure on staff and prisoners in an estate that we know is already bursting at the seams in some places. Various witnesses argued for keeping the matter under review and I agree with and welcome the cabinet secretary’s commitment to keep the committee updated on the work that he has commissioned in relation to HDC.

Although much of the attention at stage 1 focused on the electronic monitoring provisions, the bill also proposes changes to the requirements on disclosure of convictions and, to a limited extent, the role of the Parole Board for Scotland. In the case of the former, I think that the approach, which matches that taken south of the border, is reasonable and proportionate, and has the potential to simplify the rules around disclosure. However, that will depend on the success of efforts to promote public understanding of what should be disclosed, when and in what circumstances.

Ultimately, we know that people can and do stop offending, and that employment is a key factor in desistance. Therefore, in the interests of public safety, if we reduce the barriers to employment, we can reduce the risks of reoffending. In that regard, I hope that we also see an end to the tick-box approach that is used by some employers pre-interview.

There are a range of issues that need to be addressed before the bill concludes its passage through Parliament. For now, I confirm that the Scottish Liberal Democrats will support the principles of the bill at decision time.

The Deputy Presiding Officer:

We move to the open part of the debate. Speeches of six minutes, please. I have a bit of leeway to allow for interventions.

Photo of Rona Mackay Rona Mackay Scottish National Party

As we have heard, the bill is fairly complex in parts, so it is hard to distil it in a speech of six minutes. However, I will to try to capture each of the three main areas of the bill.

As deputy convener of the Justice Committee, I add my thanks to the clerks for their hard work in producing an accurate account of the evidence that we heard over many months, and to all those who gave evidence.

The bill brings about a number of reforms that I believe are badly needed to ensure that Scotland’s justice system retains its focus on prevention and rehabilitation while enhancing support for victims.

Part 1 expands and streamlines the use of electronic monitoring. As the policy memorandum states:

“The expansion of electronic monitoring supports the broader community justice policies of preventing and reducing reoffending by increasing the options available to manage and monitor offenders in the community, and to further protect public safety”— which is paramount, as the cabinet secretary stressed more than once in his opening speech.

The policy memorandum continues:

“The introduction of new technologies, such as Global Positioning System (GPS) technology, presents opportunities to improve the effectiveness of electronic monitoring, for example through the use of exclusion or inclusion zones that will offer victims significant reassurance”.

Nancy Loucks, chief executive of Families Outside, said:

“Electronic monitoring offers a valuable tool for reducing the use of imprisonment. Prison fractures families, whereas with the right support in place, electronic monitoring can keep families together, thereby maintaining social supports and reducing the risk of further offending.”

However, as the convener outlined, Scottish Women’s Aid has raised some concerns around GPS with regard to the safety of women and children in domestic abuse situations, with perpetrators moving freely outside exclusion zones or continuing to use other means of contact, such as texts, emails or social media. I believe that that area has to be carefully considered by means of constructive amendments at stage 2.

We know that we are locking up too many people. The high use of remand accounts for Scotland being among the most punitive nations in western Europe. There are around 8,000 prisoners in Scotland, and remand prisoners make up around 19 per cent of the prison population and account for around 27 per cent of deaths by suicide in custody.

Photo of Daniel Johnson Daniel Johnson Labour

Does Rona Mackay agree that it is shocking that the rate of entry to prison on the ground of remand in Scotland is almost twice as high as it is in the rest of Europe? The rate in Scotland is around 18 per 100,000, whereas the rate in most other Organisation for Economic Co-operation and Development countries is around half that.

Photo of Rona Mackay Rona Mackay Scottish National Party

I absolutely agree that that is shocking, and we seriously need to address it. I hope that the trajectory that we are on will do something to deal with it.

Efforts have been made, most notably in Dame Elish Angiolini’s 2011 review, which reported that women in prison are likely to be victims as well as offenders, with 53 per cent having experienced emotional, physical or sexual abuse as a child. Despite those efforts, the number of women remanded has been rising steadily over the past 40 years. Some 75 per cent of those women do not go on to be convicted. That is unacceptable and, in my opinion, an abuse of human rights.

The use of electronic monitoring instead of remand is not included in the bill, but the committee heard persuasive evidence that it should be, so I look forward to the cabinet secretary’s comments on that in his closing speech. I am aware that the Government is proposing to introduce a pilot project to test its use, and I would appreciate more information on that, too.

The expansion of electronic monitoring is part of the Scottish Government’s continued development of community-based alternatives to prison. Since the introduction of community payback orders in 2011, Scotland’s communities have benefited from around 7 million hours of unpaid work by people serving CPOs. From the gritting of roads in cold weather to the refurbishment and redecoration of local facilities, CPOs have reaped dividends for offenders and the community. Furthermore, reconviction rates for those who have been released from a short prison sentence are almost double the rates for those who are on CPOs. That is strong evidence that the Government’s plan to lay the order to extend, from sentences of three months to sentences of 12 months, the presumption against short prison sentences is justified.

Photo of Liam Kerr Liam Kerr Conservative

Is the member concerned that the expansion of CPOs will come at a time when one in three CPOs is never completed?

Photo of Rona Mackay Rona Mackay Scottish National Party

The rate is not as high as that—the situation is not as extreme as Mr Kerr suggests. In any case, that issue is not a reason to not go down this road; it is a separate issue, which would have to be dealt with.

The cabinet secretary has indicated that, following the tragic murder in 2017 of Craig McClelland, he is considering the introduction of a new offence of being unlawfully at large. The Government approved all the recommendations in the two inspectorate reports, which has resulted in a drop in releases on HDC of more than 75 per cent, from around 20 to 30 a week to around seven a week, as John Finnie noted. The Justice Committee is calling for an early review of whether the right balance has been struck. It was interesting to hear the cabinet secretary’s remarks on that in his opening speech.

For me and for the committee, risk assessment is crucial in the use of electronic monitoring. It must be the top priority, as public safety is paramount. The issue of breaches must also be addressed, and wider police powers of arrest might be necessary. I am sure that those issues will be considered at stage 2.

The policies of managing offenders through electronic monitoring and successful rehabilitation must be backed up with the resources that are required to support them. I agree entirely with Daniel Johnson’s comments on that. The many fantastic organisations that carry out work in that regard need financial security if the new approach is to be successful.

Part 2 of the bill relates to disclosure of convictions. As we have heard, anyone with a previous conviction can be disadvantaged for the rest of their life although they have completed their sentence. Nacro and other organisations raised a concern about the tick-box practice whereby someone has to disclose a previous conviction at the initial application stage. Families Outside stated:

“Convictions should not in themselves rule people out of employment, and people should have a fair assessment of their appropriateness for a role without being disbarred automatically at the first stage.”

A committee visit to the Wise Group confirmed that view powerfully. However, on disclosure in the context of domestic abuse, in relation to which reoffending is particularly high, Scottish Women’s Aid said:

“there must be a balance between the resettlement of offenders and the protection of the public.”

The Deputy Presiding Officer:

You must conclude, please.

Photo of Rona Mackay Rona Mackay Scottish National Party

The bill is a key part of the SNP Government’s wider work to reform the justice system, protect public safety and support victims, and I ask the chamber to support its general principles.

Photo of Maurice Corry Maurice Corry Conservative

I thank everyone who has worked hard on the bill prior to the stage 1 debate.

I have visited prisons and I have met offenders of all sorts, some who were imprisoned for a few months and others who had life sentences. Those offenders have families, aspirations and potential, just like the rest of us. Although we have a responsibility to those offenders for their rehabilitation, we have an equal responsibility to the victims of their crimes. The Management of Offenders (Scotland) Bill includes changes that will help to reintegrate prisoners, but it does not focus on victim safety as much as it should. We cannot overlook the safety of victims in moving the bill forward. As spokesperson for community safety for the Scottish Conservatives and as a member of our justice team, I have committed to keeping communities safe; I have also seen at first hand the importance of security at national and community levels.

In line with the theme of safety, the bill’s three main elements—improving the approach to electronic monitoring, reducing the period of time for which disclosure is required and streamlining the Parole Board—should mean that risk assessment is used judiciously. I acknowledge the research that has gone into the bill, but further examination is needed to ensure that it does enough to improve the management of offenders and to protect our communities.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I thank Maurice Corry for giving way. I will, of course, listen to the rest of his speech, but can he give an indication of exactly what amendments he will lodge or wants the Government to lodge that will give more weight to victim safety? It would be helpful if at this stage I was able to get some specifics on that on which to come back at stage 2.

Photo of Maurice Corry Maurice Corry Conservative

We should give more power to the police to make sure that they are on the ball when they are investigating crime and protecting our communities. The appropriate procedure should be put in place and adhered to, to ensure that the perpetrators of the crime are dealt with. As far as the Conservatives are concerned, if we put electronic monitoring in place, we should make sure that it is properly sorted. We must reduce the number of people who cut the band off their leg or wherever it is—or prevent them from doing so. It is about managing the issue and being sensible about it.

Part 1 of the bill outlines changes for electronic monitoring. I support the bill in its step towards improving electronic monitoring capabilities, but I do not support extending its use. Since electronic monitoring was introduced, technology has significantly changed and using the GPS system seems to be a logical step in improving its use. The electronic monitoring in Scotland working group report claims that

“Increasing the number of individuals released on licence with EM ... presents a unique opportunity to aid prisoner reintegration while maintaining an element of control.”

However, we must be cautious. As I said to the cabinet secretary, it is about putting the system in and managing it.

In the wake of cases such as that of Craig McClelland, it is obvious that improvements are necessary to secure the safety of our citizens so that such horrendous and preventable crimes cannot happen again.

I stand by the 2016 Conservative manifesto statement that

“life should mean life for some of the worst offenders, who would not have the right to apply for parole.”

We must ensure that everything is done in wisdom and order, and we must not overlook the victims of those offenders. Using exclusion and inclusion zones with GPS monitoring can offer victims the reassurance of greater safety, but it is still not enough.

As I have said, the issue is twofold: we must keep communities safe, and we must rehabilitate the offenders. By that logic, many people argue that community sentences are the best way forward for the offender, but justice cannot be denied. One third of community sentences are not completed, so surely expanding their use is questionable. Victim Support Scotland notes that

“communities have no faith in community sentencing”.

It is not fair to victims, nor is it just, if offenders evade what is both a punishment and a rehabilitation.

I will touch briefly on disclosure. It is staggering that 33 per cent of males and 10 per cent of females in Scotland are likely to have a criminal conviction. That does not mean that those people are all hardened criminals—the position is much to the contrary. Those people have to disclose their sentences to employers, colleges, the armed forces, universities and the like in accordance with the timetable that is set in place in the Rehabilitation of Offenders Act 1974.

The world is a changed place since 1974, but much remains the same. Although we might not like to think so, employers could discriminate against someone with a criminal record when hiring them. Having to disclose spent convictions over a long period of time can have an on-going impact on someone’s career opportunities, their education and whether they can open a bank account, for example. That makes it difficult for people who want to move on from their past offences. Their crime was committed and a punishment was served. Now that they have served their time, it is not only compassionate, but just, that reformed offenders should be allowed to move on from their past offences.

Justice is an on-going process and I agree that it is only fair that people who offended in the past and who could benefit from that change are able to do so. However, to protect public safety, it is only correct that more serious offences are disclosed in disclosure and barring checks.

It is only right that there is an update to the Parole Board’s form and regulation. The Parole Board serves an important and essential role in managing an offender’s risk to the community. Although the issues are separate from those that are addressed in the bill, the Conservatives pressed the Government in December last year on the Parole Board’s openness and transparency and its involvement of victims; as a result, the Government plans to consult on those matters.

I have met members of the Parole Board and have seen the good work that they do. Deciding an offender’s future is not an easy task, and the bill contains provisions to improve the Parole Board’s operation.

Through improving the approach to electronic monitoring, reducing the period of time for which disclosure is required and streamlining the Parole Board, the Management of Offenders (Scotland) Bill could take a step in the right direction to a safer Scotland. However, that is not enough. The bill seeks to reform offenders, but it overlooks the needs of victims. As the bill progresses, I will welcome amendments that have community and victim safety at their forefront. I trust that the cabinet secretary will take action on such amendments.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

It has been a pleasure to be a member of the Justice Committee for the second round of evidence gathering on the bill, although I was not on the committee when evidence was first called.

Like other members, I thank the clerks. As the Presiding Officer knows, we had a debate in the chamber earlier in the week on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, and it is a credit to the clerking team that they have prepared two high-quality reports to tight timescales. It is a very busy committee.

The bill allows for GPS to be used to prevent and reduce reoffending by managing people in the community and reducing time in prison, which is in line with the wider ideology on justice in Scotland. We know that, in general, rehabilitation is much more likely to be successful in the community.

Photo of Daniel Johnson Daniel Johnson Labour

Although I agree with my colleague Fulton MacGregor’s sentiment about the use of electronic tagging in reintegration, does he acknowledge the new prisons inspector’s comments that we do not have the data on the effectiveness of such things, which is a deficiency?

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I am just going on to talk about restriction of liberty orders, but I recognise that the lack of data is an issue.

Restriction of liberty orders, which are a form of electronic monitoring, have been used since about 2002 and they are effective. Compliance seems to be quite high—although I take Daniel Johnson’s point that we might need a wee bit more data on that—and they are widely used by courts as an alternative to custody. The key thing that RLOs do is to allow people to continue the work that they are doing, perhaps through a community payback order, that allows them to address their offending behaviour, rather than going into custody. RLOs also allow people to maintain their employment—if they have employment—and positive relationships, which are two of the key factors that are crucial to reducing reoffending.

As other members mentioned, the period of evidence gathering was extended until January, which was prompted by the tragic case of Craig McClelland. I am pleased that the cabinet secretary has now proposed that the risk assessment process with regard to the decision-making procedures for home detention curfews should be strengthened. I also note from the cabinet secretary’s speech that there will now be a presumption that individuals whose index offence involves violence or knife crime will not in normal circumstances receive home detention curfew, and that there is an intention to extend that to serious and organised crime. That refers to the index offence for which somebody serves a sentence, and the committee was a wee bit unsure where past offences that came under those categories would fit in. That is why the assessment process is crucial.

The committee heard from James Maybee of Social Work Scotland, who was pretty clear that

“electronic monitoring is not a panacea”.—[

Official Report, Justice Committee,

8 May 2018; c 5.]

I think that everybody on the committee agreed that electronic monitoring is not appropriate for every case. We need to take into account its wider impacts, particularly when somebody is on a community payback order.

With regard to Liam Kerr’s intervention on my colleague Rona Mackay on community payback orders, the stats for 2017-18 were out this week, and 70 per cent of community payback orders were complete, which means that roughly 30 per cent were incomplete, as Liam Kerr said. Instead of just thinking that there is a failure in the system, we need to understand that there is a wide range of reasons why those community payback orders have not been completed. Seventy per cent of them having been completed is probably quite a good level to reach.

Photo of Liam Kerr Liam Kerr Conservative

Will the member take an intervention on that point?

The Deputy Presiding Officer:

That is up to you, Mr MacGregor.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I need to move on. I have already taken one intervention. I know that I mentioned Liam Kerr, so I apologise to him.

Those who carry out risk assessments need to take into account all the circumstances and to have access to the relevant information in other areas. We have heard evidence that social work reports take into account only what the individual has to say but, in my experience, that is not often the case. However, I accept that the majority of the information for a report often comes from the individual interview.

The committee looked a lot at the risk to others. If someone is given an electronic monitoring device and placed at home, they could pose a risk to others. Children could be in the house, so there are child protection issues. We also need to consider domestic abuse situations, and I know that colleagues will speak about that. Given the nature of domestic abuse, that risk might not be detected, so an individual who is perpetrating domestic abuse against their partner could be in the house. We need to look at those issues.

I see that I am running out of time. The committee took a lot of evidence on tackling breaches. I welcome the creation of a new offence and what the cabinet secretary said in his opening speech. I also hear what the other parties are saying, but we need to reach a compromise on the issue. We need to be mindful of breaches that involve alcohol or drugs. In this country, we treat addiction more as a health concern than a justice concern, but we need to look at that issue, too.

I had a couple of things to say about the Parole Board but, given that I am out of time, I finish by simply urging the chamber to support the principles of the bill at stage 1.

Photo of Neil Bibby Neil Bibby Labour

I thank the members of the Justice Committee for preparing their report. The bill is important not just because it provides for modernisation and reform of how offenders are managed, but because it is an opportunity to strengthen the law.

I want to focus on the strengthening of the law in relation to electronic monitoring and home detention curfews. We must not miss this opportunity, because the clear gaps in the law and in the system need to be addressed. As has been said, the committee supports, in principle, the introduction of a new offence of being unlawfully at large when an HDC is breached, and so do I.

On resources, it is clear that electronic monitoring alone is not sufficient, and that it must be provided alongside other forms of monitoring and intervention. The committee has, quite rightly, called for greater clarity on the additional resources that will be made available to the Risk Management Authority, local authorities and others, in order to make a new approach work. The committee stated that

“it is not immediately obvious where the extra resources will come from.”

Like Daniel Johnson and others, I suggest that there are a number of areas in which the Scottish Government could go further. There could be enhanced public reporting on the use of home detention curfews and independent monitoring. Jurisdictional issues could be avoided by requiring that, to be eligible for an HDC, someone must provide an address in Scotland that has been properly assessed. Crucially, we must ensure that there is always thorough risk assessment of an HDC. Serious consideration should be given to how risk assessments could be made independently, as opposed to their being conducted only by Prison Service staff who are overstretched and under pressure. The bill needs to deliver a far better system for managing offenders in practice.

Photo of John Finnie John Finnie Green

Does the member acknowledge that there is a role, at present, for criminal justice social workers in the compilation of risk assessments?

Photo of Neil Bibby Neil Bibby Labour

I acknowledge that, but we need to look at how we strengthen the process further and make it more independent, as I said.

As members have said, the bill must deliver a system that carries the confidence of the public, victims and law-abiding families, such as the family of Craig McClelland. My community was shocked by Craig’s tragic murder. He was a family man who was killed one evening in an unprovoked attack as he went about his business in Paisley. He was killed by a man who had been previously convicted of knife offences and who, having broken his tag, had been unlawfully at large for five months.

One of the most important duties of any Government, of Police Scotland and of the Scottish Prison Service is to keep the public safe. The policy memorandum makes perfectly clear the need to balance the provisions in part 1 of the bill against the need to further protect public safety. In the McClelland case, that duty was failed with tragic consequences and now there are three children who will grow up without their father.

The committee report on HDC sentences states:

“The public has the right to be protected as far as possible against the risk that someone will re-offend”.

That simply did not happen in the case of Craig McClelland. No member of my community or any other should ever be failed in the way that Craig McClelland was. No family should have to go through what Craig’s family have gone through; nor should they have to fight as they have had to do just to get some answers and to understand not just what happened to Craig but, most important, why it happened.

Two process reviews by HMIPS and HMICS have confirmed that there had been significant failings leading up to Craig’s death, but the reviews said only so much and the family have been left with more questions than answers. They know that something went terribly wrong, but what that was and why it came to pass have never, to their mind, been fully and properly detailed, explained and exposed. The family fear that they simply cannot trust the answers that they have been able to get, such has been their loss of confidence in the system that they should be able to turn to in times like this.

Close members of the McClelland family have called for a full independent inquiry, in order to ensure that lessons are learned and that no other family have to go through what they did. Such an inquiry would be very clearly in the public interest and hugely relevant to the debate that we are having today about the future of electronic monitoring.

Members will be aware that the justice secretary is resisting a public inquiry into the circumstances leading to the murder of Craig McClelland. Like many others, I believe that that refusal is without good reason. Families should have a right to answers, and they should not have to plead with ministers for action and a full inquiry. It should be automatic.

Craig’s father Michael has now written to the Lord Advocate, asking him to instruct a fatal accident inquiry, and I welcome the support for that from members across the chamber. I hope that the Lord Advocate will agree and give the case full and sympathetic consideration.

The battle that the family are going through for an inquiry serves to illustrate another weakness in legislation. If a prisoner in a custodial setting were to murder another, there is no question but that there would be a fatal accident inquiry. Any death in prison custody could lead to a fatal accident inquiry under the 2016 act. If that is the case for deaths on the prison estate, why do we not apply similar standards to deaths that are caused by prisoners serving their sentence, or part of their sentence, on an HDC?

I am prepared to lodge amendments to that effect to the bill at stage 2, and to ensure that inquiries would be mandatory in tragic cases such as the murder of Craig McClelland. How can we be confident in the solutions that the Government brings forward to make HDCs work in the right way if it does not fully learn the lessons when they go so wrong?

Families that have been let down so awfully need to have confidence in the system and confidence in the bill. The bill might plug gaps and fix some of the weaknesses in electronic monitoring and HDCs, but will it fundamentally strengthen the way in which we manage offenders and improve public safety? We cannot have confidence in the system until we know for sure that lessons have been fully learned.

Photo of Shona Robison Shona Robison Scottish National Party

In order to have a truly fair and progressive criminal justice system for Scotland, it is fundamentally important that we get our management of offenders right. The bill has the potential to transform Scotland’s approach to criminal justice by focusing on the prevention and rehabilitation of offenders as well as on the enhancement of support for victims.

The bill also furthers the Scottish Government’s ambition to reform Scotland’s justice system to make it a more progressive model. The Government has already demonstrated that approach through a number of initiatives. It has established clear guidance on the rights of victims of crime under the victims’ code for Scotland; it is developing community custody units to rehabilitate women offenders who are nearing the end of their sentences, helping them to transition back into society; and, just this week, it has progressed legislation to protect vulnerable witnesses—particularly child witnesses—in a bill that, I am pleased to say, was backed unanimously by the Parliament on Tuesday.

The bill furthers that approach, which is built on evidence, compassion and, of course, justice.

I have spoken before in the chamber about the importance of electronic monitoring as an alternative to remand sentencing, and I am pleased to see that part 1 of the bill expands that practice. Expanding the use of electronic monitoring has the potential to prevent and reduce reoffending in Scotland. However, the point that has been made about data collection is valid and needs to be pursued.

Electronic monitoring offers a community-based alternative to prison sentencing that is consistent with our presumption against short-term sentencing. We know that short-term prison sentencing has the potential to significantly disrupt families and impact on housing security, for example. We also know that offenders who are held in custody for 12 months or less are nearly twice as likely to reoffend as those who are given community-based alternatives.

Electronic monitoring is an opportunity to manage and monitor offenders effectively while, importantly, protecting and ensuring public safety. I acknowledge the comments that have been made—I think that we are all particularly mindful of the tragic case of Craig McClelland. Public safety must be at the core, and it has to be the overriding priority. I believe that it is possible, with some of the reforms in the bill, to achieve that and to minimise risk.

The implementation of GPS technology offers the potential to improve the effectiveness of electronic monitoring through the use of exclusion or inclusion zones. The benefits of such technology are obvious, but it should only ever be used where that is appropriate. To that end, I am pleased that the bill also provides guidance on the appropriate use of the technology and ensures that risk assessments must be made.

Scotland should follow the evidence and pursue a results-based approach. I believe that the bill does that. I also note that the bill makes reforms to the disclosure of criminal convictions. It is important to note, however, that the bill does not impact on higher-level disclosures, nor does it propose abolishing the disclosure process altogether. It supports the ambition of reintegrating and rehabilitating offenders as well as recognising the stigma that is often attached to previous convictions. That ambition was supported in the majority of the evidence that was given to the Justice Committee, and the proposals in the bill have been developed through consultation and dialogue with stakeholders.

Criminal record disclosure can be a significant barrier when people try to secure employment. Job applicants can face stigma and discrimination, making it much harder for them to reintegrate into society. If we truly desire our criminal justice system to be rehabilitative and believe in the principle of opportunities for reintegration into the workforce, we must address that issue. A balanced approach is required, and I believe that the bill helps us to achieve that.

The bill deals with a number of other reforms, notably in relation to the functions and structure of the Parole Board for Scotland, by delivering on some of the aims of the parole reform programme. It is important, however, to stress that the Parole Board will continue to act independently, which is important. These reforms will simplify and modernise the Parole Board’s processes as well as ensuring greater consistency in the application of parole decisions.

The commitment to strengthen the voice of victims and their families in parole and temporary release is to be welcomed, as it supports the principle that victims must be heard and listened to. I note that the programme for government includes a commitment to increase the transparency of Scotland’s parole system and that the Government will consult on proposals to do that later this year. I look forward to hearing more about those proposals from the justice secretary in due course.

As I said at the start of my speech, the way in which we treat offenders in Scotland will define our criminal justice system—it must be fair and just not only to offenders but to their victims. To that end, I am pleased that the programme for government also commits to a number of reforms to support the victims of crime, particularly in partnership with Victim Support Scotland. That builds on the work of the Victims and Witnesses (Scotland) Act 2014, the “Victims Code for Scotland” and the £18 million that the Scottish Government spends each year on supporting the victims of crime through agencies such as Victim Support Scotland. That is the balanced approach that we seek for Scotland’s justice system.

We all share a belief that the system should aspire to be fair for both victims and offenders, where possible, and the bill represents another step in the Scottish Government’s work to transform and continually improve the criminal justice system. As a member of the Justice Committee, I welcome it.

Photo of Jeremy Balfour Jeremy Balfour Conservative

I do not have the pleasure of being a member of the Justice Committee, which is the committee that has done all the hard work on the Management of Offenders (Scotland) Bill, so, when I read the stage 1 report, I did so with fresh eyes. I was very interested to read about what was proposed and the evidence that had been taken. I congratulate the convener and her committee on a very full report that fleshes out many of the ideas and concepts behind the bill.

As other Conservative members have said, we will support the bill at stage 1, but our support comes with a number of caveats. The Government still has some work to do at stages 2 and 3. The danger when speaking at this stage of a debate is that many of the issues will already have been fleshed out by people with more expertise than oneself, but I will concentrate on the electronic monitoring system.

Although I welcome the new technology that is out there, I am still slightly concerned. I was interested to read that the police monitoring is not done in real time, which means that, if someone breaks their curfew or goes out with their tag on, the police will not be aware of that until after the event has occurred.

Photo of John Finnie John Finnie Green

Does the member accept that it is a private commercial company, not the police, that does the monitoring?

Photo of Jeremy Balfour Jeremy Balfour Conservative

I accept that a private company does the monitoring on behalf of the state, but my point is that it is not done in real time. Given that the way in which technology works is constantly changing, I ask the Scottish Government to look at the issue again to find out whether monitoring could be done in real time. Victims—vulnerable victims, in particular—would be much happier knowing that, if somebody who was being monitored were to reoffend, the relevant agency or the police would know about it and would be able to intervene earlier.

Photo of Jeremy Balfour Jeremy Balfour Conservative

I would like to make some progress. I might come back to Mr Johnson.

As someone who is not heavily involved in this area, I was surprised to discover, when I read the report, that the Government had not changed its position with regard to the cutting off of a tag. I think that the overwhelming majority of the public would expect the cutting off of a tag to be an automatic offence. The cabinet secretary made comments about that in his opening speech, and I urge him and the Government to look at the issue again. In my view, the cutting off of a tag ought to be a blanket offence and, if it happens, the appropriate punishment should be applied. The same would be true if bail conditions were breached. I am concerned by the argument that some offences are different from others. I welcome what the cabinet secretary said, but I push him to go further.

Let me turn to the issue of bail. Many years ago, I spent a whole year instructing advocates to do bail appeals in the High Court in Edinburgh. I found bail appeals interesting, because the process of determining who would get bail and who would not never seemed to be completely logical. I was interested to read that, when the cabinet secretary’s predecessor gave evidence to the committee on the issue, he did not think that the use of electronic monitoring for bail was an appropriate way to go. I understand from the report that the study that was done on the subject, which was carried out about 12 years ago, did not provide enough evidence to suggest that the use of electronic monitoring for bail would be appropriate.

Clearly, things have moved on since 12 years ago, and I am interested to know whether the cabinet secretary would consider a fresh pilot scheme to see whether that is an appropriate way for electronic tagging to take place. Knowing that somebody was being tagged and could be monitored would give victims—particularly victims of assault or serious crime—the reassurance that they want.

I will draw my remarks to a conclusion by welcoming some of the reforms around the Parole Board. I absolutely agree with Shona Robison that we need to keep the Parole Board independent and that it must not be interfered with by politicians. Victims and their families need to have more of a say—I appreciate that the cabinet secretary commented on that in his opening remarks. Although I recognise the previous comments to the effect that that is already in the system, I know that many victims feel isolated when it comes to the Parole Board.

I welcome keeping the Parole Board’s independence, but there needs to be a bit more accountability for how and why it reaches its decisions. That does not mean that we should jump up at every First Minister’s question time to question the Parole Board’s decisions. However, particularly for families and victims of crime, it would be beneficial to have more public accountability.

Photo of Bob Doris Bob Doris Scottish National Party

I wish to speak as much to what is not in the bill as to what is in it. I will return to that later.

My comments will refer particularly to the work of the Parole Board. Part 3 of the bill contains elements of reform of the Parole Board. I note and agree with the committee’s description of those elements as “limited”. For instance, the bill will remove the requirement to have a High Court judge or a psychiatrist on the Parole Board. I also note that the committee is “broadly supportive” of the reforms more generally. However, as the cabinet secretary acknowledged, the reforms must be seen in conjunction with the consultation document “Transforming Parole in Scotland”, which was published on 19 December 2018. I also agree with the committee that it is “unfortunate” that the proposals are not being “considered in the round” with what emerges from the wider consultation. Of course, that is not a reason to reject the proposals in the bill, but it remains unfortunate.

We must remember that the principal role of the Parole Board relates to the possible release of a prisoner once they have served in custody the part of their sentence that relates to punishment and deterrence. Crucially, the Parole Board is charged with assessing whether the level and nature of risk that a prisoner presents at that point can be safely managed within the community. That is crucial, because it sets the rights of the prisoner who is being considered for release alongside the rights of the wider communities that we serve, and those of society in general.

The Scottish Government’s programme for government states that it

“will ensure victims and their families have better information and greater support ahead of prison release arrangements.”

Given the tragic stories of families that we have heard about in the debate—not least, the tragic murder of Craig McClelland from Paisley—if we do not get the provisions in part 1 of the bill right, we risk creating a whole new set of victims. I strongly believe that the opportunity exists to have a safer community disposal and to reduce reoffending by using the bill wisely. I absolutely believe that that is what the outcome can be.

In that context, however, I repeat the committee’s recommendation on part 1 of the bill that

“electronic monitoring should only be used after a comprehensive assessment of risk, particularly for those individuals who would otherwise be incarcerated.”

I will make no comment on the robustness of the review of any comprehensive risk assessment. Rather, I thank the committee, which has looked at the matter in some detail, for its work. There must be strong public confidence in such risk assessments, and we must acknowledge what the convener of the Justice Committee, Margaret Mitchell, said. We must also acknowledge the thoughtful speech from John Finnie, who made the point that although risk is never fully eliminated, we, as a society, do not lock people up and throw away the key.

However, I record my support for the opportunities that technology allows us, including through electronic monitoring. I will also follow closely the Scottish Government’s consideration of the introduction of a specific offence of being unlawfully at large, which was mentioned earlier.

As I said at the start of my speech, my comments on part 3 are as much to do with what is not in the bill as they are to do with what is in it. On the consultation on the Parole Board and the role of victims, we need to ensure that the commitment to better information—which is referred to in the very welcome enhanced openness and transparency that the Scottish Government wishes for victims and families—is meaningful, interactive, involves a dialogue and is more than a box-ticking exercise. On that point, I commend the committee’s conclusion that the Scottish Government should ask the Parole Board to consider the wider impact of its decisions, particularly on victims, and how victims can be given a voice in the process.

The committee notes that that will be a key part of the consultation. I want to go further than that. I ask the Scottish Government to give consideration to including witnesses in the process, in certain circumstances. Let me explain. Imagine that the evidence of a crucial witness in a serious criminal trial has been instrumental in securing a sound conviction. Their identity is known to the perpetrator—perhaps the witness knew them—and the perpetrator could be released from prison under certain parole conditions. Would not that witness wish to be notified of the perpetrator’s impending release? Would not that witness like support and assurances? Would not that witness, too, benefit from openness and transparency? I ask the Scottish Government to give that point serious consideration and to take my speech as a contribution to the wider consultation.

Finally, I commend the Scottish Government for establishing a support service with Victim Support Scotland to give families who have been bereaved by murder and culpable homicide dedicated and continued support. I understand that it will also be open to people who are bereaved by such acts that happen overseas. I welcome that—it is a matter in which I have a particular interest.

I have enjoyed listening to the debate more than I have enjoyed contributing to it, because I did not sit on the committee and do not have granular knowledge of the issues that have been raised. However, I wanted to raise the specific issue of witnesses being treated similarly to victims. I hope that Parliament will agree the general principles of the bill this afternoon.

Photo of Mary Fee Mary Fee Labour

I begin by supporting the points that were made by my colleague Neil Bibby on the tragic case of Craig McClelland. I welcome comments that were made by other members from across Parliament showing support for Craig McClelland’s family. The family of Mr McClelland deserve answers, and the debate today should serve as a reminder to us all that management and monitoring of offenders are important for protecting the public and for supporting rehabilitation of those who need and deserve it.

It is also a reminder that management of offenders can have an impact on more people than just offenders.

I welcome the general principles of the Management of Offenders (Scotland) Bill, and I thank the Justice Committee for a very informative and thorough stage 1 report. The contributions from people in the criminal justice sector and from third sector groups have given us greater insight into the needs of the bill, at the same time as they have detailed how we can improve support for offenders, their families and the community as a whole.

The changes to electronic monitoring that are proposed in the bill have widespread support, but they could go further. However, even if they remain as they are set out, the changes must be effectively and efficiently funded.

The Justice Committee recognises that electronic monitoring will be effective only if it is delivered in conjunction with the right support from other agencies. That issue was raised by several witnesses during the committee’s evidence sessions. James Maybee from Highland Council and Social Work Scotland said that the bill would be “a failed opportunity” if it resulted in increased workloads for social workers, and that working with criminal justice social work and the third sector has to be

“an integral part of electronic monitoring in the future if we are to maximise its potential success.”—[

Official Report, Justice Committee

, 8 May 2018; c 2-4.]

Families Outside also warned that

“Without structured supports in place, EM becomes a purely punitive measure”— a point that was well made by Liam McArthur in his comments. Families Outside went on to say that that happens if electronic monitoring

“fails to address the reasons for the offending or to reduce the likelihood of breach due to pressures of unstable housing, substance misuse, poverty, chaotic environments, and damaging relationships.”

That quotation from Families Outside also reveals the importance of support for the family of an offender who is on electronic monitoring. I have often spoken in chamber debates about the need to support the families of offenders. Evidence to the committee shows that families can struggle to deal with the demands of living with someone who is on a home detention curfew or electronic monitoring. Karyn McCluskey of Community Justice Scotland best described that by saying

“home detention curfew is a big ask for lots of families. Having someone in the house from seven until seven might be quite difficult for families. We know that families can support people to comply with their order, but it takes a great toll on them.”—[

Official Report, Justice Committee

, 8 May 2018; c 9.]

Tensions can grow at home, between partners, between parents and between children, and anyone living in the home. Tensions can happen in any home, but curfews and monitoring can exacerbate problems at home. Children must be protected when they face such challenges and such massive change. It can be daunting for a child to have strangers in the house, adding new technology in the home, and to see a parent wearing a tag around their ankle.

Problems that are associated with alcohol or drug misuse will not disappear through collecting data on use or consumption. As was highlighted by the Edinburgh Bar Association, it would be dangerous to expect complete abstinence from alcohol. On the link between alcohol and domestic abuse, Scottish Women’s Aid warned the committee not to assume that preventing domestic abuse offenders from drinking would prevent them from offending. Of course, many people find themselves in the criminal justice system because of alcohol or drugs, but they need proper treatment and counselling to overcome their problems.

In order to ensure that the police can protect communities, we must ensure that they are properly empowered. We cannot have more tragic losses like that of Craig McClelland. Such losses are entirely preventable, given the right resources and powers to allow the police to carry out their duties.

At the heart of the debate is a need to accept the necessity of a wraparound system of community justice—one that starts at the point of sentencing and goes right through to release and the person re-entering the community. That is clear from the evidence that was presented to the committee in written submissions and in evidence sessions. That is another issue that I have raised many times in debates in the chamber.

It is clear that the bill needs to be strengthened. I hope that, as it progresses, we will see more recognition of impacts on families and acknowledgement that support is required. As my colleagues have done, I welcome the general principles of the bill and hope that the Government will listen to and heed the external bodies that contributed to the stage 1 report.

Photo of Jenny Gilruth Jenny Gilruth Scottish National Party

I begin by thanking, for the second time this week, the clerks to the Parliament’s Justice Committee for all their work in supporting the committee and pulling together its report ahead of this stage 1 debate. I am glad that we will all vote this evening to support the principles of the bill.

When I was still at school in 2001, Scotland’s prison population stood at 5,803 people. By 2015, it had gone up to 7,647—an increase of more than a third.

Just two days ago in the chamber, members heard about evidence from Children 1st, which described Scotland’s approach to criminal justice as being

“rooted in the Victorian era”.—[

Official Report

, 5 February 2019; c 30.]

The bill is therefore a timely intervention in respect of management of offenders—especially if we consider that recorded crime rates in Scotland remain at a record low level.

As has been mentioned, the bill has three overarching policy intentions: to extend use of electronic monitoring; to reduce the time period for which there must be disclosure of convictions, for example when applying for a new job; and to reform the functions and governance of the Parole Board for Scotland.

The wider policy context for the Scottish Government is set within the parameters of community justice and preventing and reducing reoffending. That can be achieved only by increasing the options that are available to manage and monitor offenders. Rona Mackay quoted Families Outside, which powerfully told the committee that

“Electronic monitoring offers a valuable tool for reducing the use of imprisonment. Prison fractures families, whereas with the right support in place, electronic monitoring can keep families together, thereby maintaining social supports and reducing the risk of further offending.”

Engender emphasised the different impacts of imprisonment on men and women, particularly with reference to traditional family roles. It pointed to the fact that the prison rate for women in Scotland remains among the highest in northern Europe. As the electronic monitoring working group recommended in October 2016,

GPS technology is versatile and decisions on its use should be made as part of an individually tailored approach, including where it can aid public and victim safety and where it can be used supportively to strengthen the monitored person’s desistance.”

As the Justice Committee’s convener said in her speech, the committee considered in great detail the balance between public protection and the potential benefits of releasing someone with the use of electronic monitoring as an alternative to custody. As Scottish Women’s Aid told the committee,

“there must be a balance between the resettlement of offenders and the protection of the public.”

The bill will allow use of GPS technology to monitor offenders’ movement, and it provides for enforcement of exclusion zones—for example, around victims’ homes. As the cabinet secretary said in his opening speech, that can offer victims reassurance and respite.

On that point, a number of gendered implications for broader use of electronic monitoring were highlighted to the committee. Scottish Women’s Aid pointed out that

“where the monitoring was used pre-trial, victims may be made anxious by seeing the abuser moving freely about in settings outside the exclusion zone(s), and studies have indicated that they were concerned that abusers would be able to manipulate the technology or subvert its capacities and undermine programme rules and restrictions”.

I have raised that point at committee with the cabinet secretary. I would be grateful if he could, in summing up, revisit the gendered implications of widening use of GPS technology, in particular in domestic abuse cases. As enshrined by legislation that has been passed by Parliament, domestic abuse is now acknowledged as encompassing coercive and controlling behaviour, which is far more difficult to police via GPS technology.

Glasgow city health and social care partnership noted that

“Some victims have reported over time being re-traumatised by the presence of the electronic monitoring box in their homes, so this provision very much requires the cooperation of victims.”

Because routine electronic monitoring involves a curfew, there is the potential that, for example, the victim could go to the perpetrator’s home while they are confined to that address, which could increase risk, or that the perpetrator would take potential victims into their home. We highlight that electronic monitoring can be used as an effective tool in domestic abuse cases, but it can have unidentified risks.

Photo of Liam Kerr Liam Kerr Conservative

Does Jenny Gilruth agree with Scottish Women’s Aid that breach of electronic monitoring conditions must automatically be an offence?

Photo of Jenny Gilruth Jenny Gilruth Scottish National Party

We have discussed that today. I am not convinced either way, but Scottish Women’s Aid makes a valid point.

However, the Howard League Scotland is not against use of exclusion zones. It argued that exclusion zones must be limited in size, especially in cases involving domestic violence. Social Work Scotland told us:

“It is imperative that boundaries are unambiguous and clearly outlined for those subject to restriction”.

Of course, the bill is part of the Government’s wider work on reforming the justice system, protecting public safety and supporting victims of crime. As was heard in a debate in the chamber this week, there is consensus to pull the justice system out of “the Victorian era”—as it is depicted by Children 1st—and into the 21st century. That is partly about investing in alternatives to traditional imprisonment, but it is also about how the system supports victims of crime. On that point, I welcome the cabinet secretary’s establishment of the victims task force.

The bill introduces a number of reforms to strengthen Scotland’s justice system and to widen the alternatives to imprisonment. I am grateful to have the opportunity to make the case for a gendered analysis of what that means for both women offenders and victims of crime—in particular, victims of domestic abuse.

Electronic monitoring can have a great role to play in supporting our vision for a fairer, safer and more inclusive nation. The bill commits to getting right the balance between public protection and the alternatives to managing offenders, with the wellbeing of victims of crime at its heart.

Photo of Christine Grahame Christine Grahame Scottish National Party

We move to closing speeches. Daniel Johnson will close for Labour. I will give you seven minutes.

Photo of Daniel Johnson Daniel Johnson Labour

That is very generous of you, Presiding Officer. Thank you very much.

The Justice Committee clerks must have been listening to the debate because the head clerk has joined us to hear the praise that is being heaped on the clerks. I reiterate that the bill has been a difficult bit of work in which the clerks have supported the committee extremely well.

In summing up, it is hard not to acknowledge the shadow that the tragic murder of Craig McClelland has cast on the process. It is right that we reflect on the issues that that has thrown up and on how we can improve the bill in their light. I will touch on two key elements with regard to that case, which were raised by my colleague Neil Bibby and by Liam McArthur.

The strategic and procedural nature of the two inquiries that were carried out by HMIPS and HMICS meant that there were always going to be questions left unanswered. They touched on a specific element of the Craig McClelland case and, by definition, were not detailed inquiries specifically into the incident. The question remains whether there should be an independent inquiry. I know that the cabinet secretary has been reluctant, but I ask him again whether he would consider it, in particular because of some of the issues that Liam McArthur raised.

I believe that the call for automatic fatal accident inquiries when people are on non-custodial sentences or on measures such as HDC are valid and have merit, so I will certainly support Neil Bibby on that. The backlog of FAIs is an issue in and of itself. We need FAIs when there are failures in our public services and when there are tragic incidents on which we need answers. We need understanding of systemic issues. That backlog hinders our ability to give people confidence and understanding of what went wrong so that we can learn lessons.

In relation to HDC, members have rightly brought to light a number of issues around assessment, how we consider risk and how it should be monitored. The issues around interagency communication and other such technical points are important, but there are also fundamental issues of capacity and competence to consider, which circumstances have highlighted.

Specifically, the HMICS report states that 44 offenders were “unlawfully at large”. The fact that so many of them were quickly apprehended after that and the number reduced to a single digit in such a short space of time shows that those people could have been apprehended earlier. It is simply the case that resources were not brought to bear.

Indeed, in Gill Imery’s subsequent evidence to the committee, she pointed out that the standard operating procedures as they stood were adequate, but

“it was just that they were not followed.”—[

Official Report, Justice Committee

, 20 November 2018; c 39.]

Those are her words, not mine. We need to look carefully at how breaches are followed up and pursued by the police. I do not believe that answers on that have been established.

Photo of John Finnie John Finnie Green

Does Daniel Johnson acknowledge that the current arrangements involve three organisations and, therefore, six different relationships, and that if it was just about one public body and the Prison Service, we would not have such a complex set-up of relationships?

Photo of Daniel Johnson Daniel Johnson Labour

John Finnie makes an excellent point. That is one of the things that needs still to be looked at. The complexity of relationships is a point to consider. The member also made a good point in his intervention on Jeremy Balfour: we need to question whether use of private sector organisations has added an extra loop to the information chain, and added a level of complexity that does not need to be there.

There has been something of a missed opportunity with the bill. When we were considering electronic monitoring, the points that many members have raised about the new possibilities that GPS offers should have prompted re-examination of how such things are used, how they can best be used and whether the existing orders and provisions could be adapted, amended and improved to reflect the new possibilities of technology.

I thank members for reflecting my points, which were also raised by HMIPS, about the lack of data. I want to support the measures on that. I am fundamentally progressive in my attitude to such things. However, unless we have the data—unless we know what works—we simply cannot make decisions that are as effective as we want.

The other key missed opportunity is in relation to remand. I will correct the record, because I made a small error in data that I used earlier. The incarceration rate for remand prisoners in Scotland is 30 per 100,000 of the general population, and 20 per cent of our prisoner population is on remand. I will not compare that with OECD figures, but with England and Wales, which have a similar overall level of incarceration to the OECD figures. The incarceration rate for remand prisoners in England and Wales is 16 per 100,000 of the general population, and 11 per cent of the prison population is on remand. We need to ask ourselves why that is happening. The bill is a missed opportunity to examine whether we could use electronic monitoring to tackle the stubborn problem that we have in the Scottish prison system.

I will talk about the Parole Board for Scotland. I do so mindful of members of the public in the gallery. Bob Doris made an excellent point. The Parole Board serves a central function in our justice system—it is a gatekeeper and a guardian at the point at which people are reintroduced to our communities from prison. It is therefore really important that we examine the issues in the round. It is unfortunate that the bill was embarked upon when another consultation was in the works in the Government.

More important, the bill was introduced after there were concerns regarding the Worboys case in England. It would therefore have been relevant, and warranted, to have had transparency regarding the Parole Board, and to have looked at its status and how it functions. In its submissions, the Parole Board made good points about how its position and the transparency of decision making could be improved through the bill. I would like those points to be considered as we proceed through stages 2 and 3.

I reconfirm that Scottish Labour will support the bill at stage 1, but a good deal of testing and scrutiny needs to be done on it. It needs improvement.

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

I close on behalf of the Scottish Conservatives. These benches broadly support large parts of the bill, but in the next stages of the parliamentary process we will seek to amend the bill where we feel that that should be done.

We are looking today not just at the way in which we deal with offenders, including their rehabilitation, but at ensuring that victims and wider society have confidence in our criminal justice system. That confidence has unfortunately been eroded, particularly by some high-profile cases. That shone through clearly in the evidence that was given to the Justice Committee, some of which has been cited today.

We have heard calls for a zero-tolerance approach to breaches of electronic monitoring, backed by effective police powers to be able to deal with individuals who flout the rules. The current system is slow and ineffective, requiring a breach to be dealt with by a sheriff, who assigns a hearing within four weeks. The fact that Police Scotland action in those circumstances is limited by bureaucracy will be of little comfort, especially to victims, who may have to endure a number of encounters with an offender, despite an order being in place to protect them. It is therefore a step forward that consideration is to be given to making the breaching of a home detention curfew a criminal offence. That will be dealt with at stage 2.

However, as we heard today, in some areas the bill does not go far enough. If it is to mean anything, zero tolerance must include swift action and response. Incidents should be dealt with as soon as they happen, and we should prevent a slide into more serious behaviour.

There are serious questions about why the bill does not propose to make the cutting off of a tag an automatic criminal offence. My colleague Liam Kerr referred to that. That is one of the questions that must be addressed as we proceed through the next stages of the bill.

Electronic monitoring does of course serve a purpose for offenders, allowing those with a history of offending to be active and responsible contributors to their communities. Indeed, the Scottish Conservatives have previously called for greater use of satellite tracking and strict home detention.

The Scottish Government has set out and, I think, repeated this week, that electronic monitoring could be used for individuals who would otherwise have served short-term prison sentences of less than 12 months.

The problem is, as we have heard, that the Scottish Government is seeking to expand community sentencing when the statistics show that it is not delivering justice for victims. One in three community sentences are ignored; a quarter of community payback orders do not include any unpaid work or activity; and only 40 per cent of drug treatment and testing orders are completed.

What is emphasised in the presumption against jail sentences of under 12 months is that it cuts reoffending rates, but we must think not just about the offenders in such cases but about the sort of message that we will be sending to victims and their families if the orders that replace prison sentences are breached and ignored to the extent to which they are being ignored and breached now. It is paramount that we keep at the forefront of our minds the experiences that victims have gone through. Moreover, as I think Bob Doris pointed out, we should not forget the witnesses who are involved in such matters and the effect on them.

Photo of Daniel Johnson Daniel Johnson Labour

The member has made some good points, but does he not recognise the need for justice to be applied consistently and that the inclusion of the victim’s perspective in parole and other matters needs to be balanced against that consideration?

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

I certainly agree that we need consistency of approach in the justice system, no matter whether we are dealing with offenders or victims, and that a number of interests need to be balanced against each other.

The committee report highlights areas where information is severely lacking, particularly where victims are concerned. Without summaries of evidence, social workers have only one side of the story, and important information, particularly on the risks to victims, might be missed. It was therefore welcome to hear the committee calling for more detailed information to be supplied through summaries of evidence.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

Does the member not accept that, as part of social work assessments, information is obtained from various sources? I have reflected on the evidence to the committee in that respect, but I do not think that what was said would be the case for every single assessment.

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

That is right. Indeed, the point that I am making is that one would try to get information from more than one source to enable the social worker to better assess the position than they can at present.

Turning to other areas of the bill, I note that proposed legislation seeks to pose greater limits on the sharing of information. In that respect, I want to refer to the issue of disclosure. The committee was correct in highlighting that, as others have pointed out, there is a balance between the right of society and an employer to know about prior convictions and a person’s ability to move on with their life. There are exceptions to that where required—rightly so—but if they are to play an active and responsible role within their community, an offender must have the opportunity to rejoin the workplace, if that is appropriate.

Lastly, I turn to part 3 of the bill, which deals with parole reform. I will not go over the points that others have made, but I want to raise one issue with the justice secretary: the need for vulnerable prisoners to have appropriate representation at Parole Board hearings. What provision will be made for prisoners who lack capacity through, say, a learning disability, dementia or some other reason and who are therefore unable to instruct a solicitor to represent them? I am thinking in particular of the power of the Mental Health Tribunal for Scotland under the Mental Health (Care and Treatment) (Scotland) Act 2003 to instruct, where appropriate, a solicitor in the form of a curator ad litem to represent an individual. As I am raising the issue for the first time with the cabinet secretary, I do not expect to get a substantive response here and now, but I ask him to confirm whether he is happy to look at the issue with me for stage 2.

As I said at the beginning of my speech, the Scottish Conservatives support the bill’s general principles and look forward to its next stages to ensure that we have a criminal justice system that works for offenders, victims of crime and witnesses alike.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

This has been a good debate, much like the debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill earlier this week. It has been constructive but challenging. Members from all the political parties, including my own, want to see the Government, and the bill, go further. It is rare that the Government presents a bill at stage 1 that is perfect and ready to go. Therefore, as the members who know me will know, I have listened very carefully and I will take members’ ideas on board as much as I can.

I will touch on the general context of the bill, as a couple of members did. By many accounts, we now have the highest prison population per 100,000 in western Europe. That is not a statistic to be proud of, although it may counter some of the claims of soft justice that have been made in the chamber. Although we have made gains and had successes towards achieving a progressive justice system, the management of offenders is one area that we have not cracked. We know that short prison sentences do not work. They disrupt people’s lives, they can cause people to lose their jobs and they are detrimental to family connections, to people’s housing situations and so on. That is not just our view; it is increasingly the view of the United Kingdom Government—there have been positive statements this week from Rory Stewart and from David Gauke, the Secretary of State for Justice.

We first piloted electronic monitoring in Scotland in 1998, and in 2011 the Scottish Government introduced community payback orders, which provide courts with a range of requirements that they can impose in community sentencing, including robust unpaid work options. Through the bill, we are taking steps to enhance the options that are available when choosing how to monitor individuals in the community, which adds to our existing electronic monitoring capabilities.

I will touch on the key themes in the debate. A number of members mentioned the concerns of Scottish Women’s Aid, and Jenny Gilruth’s gender analysis of the bill was very powerful. There are two strands to the concerns around domestic abuse. One is the use of GPS. A number of witnesses voiced concerns, and I reassure members that my officials have had discussions with Scottish Women’s Aid about the design of an electronic monitoring project that is focused specifically on domestic abuse cases. Planning is at a very early stage and I do not have further detail yet, but I will update the committee on progress in due course. I hope that that gives some reassurance.

The second concern that Scottish Women’s Aid and a number of members raised related to disclosure. I hope that I addressed that concern in my opening speech. The views that were offered by Scottish Women’s Aid and other stakeholders will be an important factor in our consideration of changes to the relevant list of offences that are subject to the higher-level disclosure scheme. As members know, that issue is part of another bill that the Government is taking forward. The changes to the Management of Offenders (Scotland) Bill will inform that consideration. Placing domestic abuse and other relevant offences in the schedule 8A list in the Police Act 1997, rather than in the schedule 8B list, is under active consideration to address the issues that were raised by Scottish Women’s Aid. That is not to take away from Scottish Women’s Aid’s very real concerns, and as cabinet secretary I will continue to engage with the organisation.

A number of members mentioned support for people who are being electronically monitored. Daniel Johnson, Mary Fee, John Finnie and a number of others all made that point and I thank them for doing so, as it is an important one. Some members have told me that they visited the Wise Group during the committee’s considerations. I was at the Wise Group on Monday, when I had a very good, positive visit. I give members the reassurance that the Scottish Government is piloting a number of projects that add support that will run alongside electronic monitoring. We do not have to legislate to take that support forward, and I am happy to furnish members with the details if they want them.

Photo of Margaret Mitchell Margaret Mitchell Conservative

Can the cabinet secretary comment on the wider point that the Wise Group emphatically made to us about resourcing of electronic monitoring? Its view was that, without adequate provision, people are being set up to fail.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

That is a powerful point, and the member can be assured that the Wise Group made it to me during my visit earlier this week. I want to ensure that we make the right type of support available to people who are part of the electronic monitoring regime. That is why the pilot projects are important. We need to evaluate them and see what is effective so that we can, I hope, upscale that work. I do not take away from what the convener or the Wise Group say.

I am conscious of time, Presiding Officer, but I want to deal with a couple of issues that have been referred to during the debate.

Many members referred to the fact that the bill does not explicitly reference bail as a missed opportunity. The Government’s view is that we believe that, as drafted, the bill enables pre-conviction bail, when the offender is awaiting trial, and post-conviction bail, when the offender is awaiting sentencing, to be added to the list of measures that section 3 says can be subject to electronic monitoring. That would be achieved via subordinate legislation under section 4, which enables section 3 to be extended to include additional disposals that might be imposed on an offender at any stage of criminal proceedings, which would include bail. However, in order to clarify the power in section 4 and to make it clear that pre-conviction measures can be added to section 3, I will introduce an amendment to that effect at stage 2.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I welcome the assurance that the cabinet secretary has just given. It is a bit of a departure from what the committee was previously told, which was that, as the bill was to do with the management of offenders, the inclusion of pre-conviction conditions might be outwith its scope.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I thank Liam McArthur for his comments. I am happy to provide that clarification. The amendment that I will lodge at stage 2 will be tested and interrogated at that point, no doubt.

All members who spoke in the debate mentioned risk assessment. That, coupled with the issue of data and what works, is an important issue. On risk assessment, I have provided the committee with further evidence—I know that some of that was seen by the committee only recently—and I re-emphasise the point that, on the back of the two inspectorate reports, there have been some key changes around the risk assessment process. Individuals who make decisions about release on home detention curfew will now have greater access to police intelligence, for example, and we know that it is now prison governors, rather than unit managers, who will decide on release on home detention curfew, which adds an extra level of assurance. Further, in direct response to the independent reports, immediate action has been taken to include a focus in daily police tactical briefings on apprehending individuals who are unlawfully at large. I acknowledge that the committee and members who have spoken today want to see more detail in that regard. I am happy to provide that, once the working group and partners have done some more detailed work.

Photo of John Finnie John Finnie Green

Does the cabinet secretary recognise that there is a danger associated with using intelligence rather than hard facts in relation to making risk assessments?

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Yes. John Finnie always raises points from a position of knowledge, based on his past experience. I recognise what he says. We should be well aware of the issue that he raises. I take his point, and it is on the record.

A number of members raised the tragic case of Craig McClelland. I take this opportunity again to put on the record my condolences, as well as those of the Scottish Government, to the McClelland family. I understand that the McClelland family have written to the Lord Advocate in relation to a fatal accident inquiry. It would be appropriate for the Lord Advocate, who has responsibility for fatal accident inquiries, to consider that request. As I have said in the chamber previously, there have been two independent inspectorate reports, and the HDC regime has been changed and made more robust.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I will take an intervention in a second.

I understand from an intervention from Neil Bibby and from his speech that he will lodge amendments at stage 2 on automatic, or mandatory, FAIs. The Government will, of course, look at those amendments with an open mind, but I go back to the point that FAIs are understandably and rightly in the Lord Advocate’s remit.

It is five o’clock, so I will end on disclosures. Many members made strong points around the impact and stigma of disclosure. A number of Government campaigns are looking at changing employers’ attitudes. Two of the major campaigns—in particular, the release Scotland campaign—bring employers to the front of the conversation so that they can talk to other employers about the benefits of taking on people who have convictions.

I will end there because I am conscious of the time. It has been a very worthwhile debate. When it comes to stage 2, my approach will be to consult members closely on how we can strengthen the bill. I am thankful for the indications of support for the bill at stage 1.