Risk assessment was discussed in some detail at stage 2 and I lodged amendment 127 at stage 3 to address some of the concerns. At stage 2, the Risk Management Authority wrote to the Justice Committee to express its concern about what was being proposed by Liam Kerr in relation to the development of a risk assessment tool.
I know that the Risk Management Authority and the Parole Board have written again to the Justice Committee to express their concern about the return of similar amendments—amendments 138 and 139—at stage 3. The Scottish Government’s approach of setting out the detail of risk assessment in an operational protocol, which must be laid before Parliament, as I said, provides further reassurance about risk assessment arrangements, without presenting some of the practical problems that amendments 138 and 139 would cause.
Amendment 138 is identical to Mr Kerr’s amendment on risk assessment that was rejected at stage 2. Accordingly, all the arguments that were presented against the amendment at stage 2 continue to apply. Namely, there is no definition of “risk assessment tool”, so it is difficult to determine what the Scottish ministers would need to do to comply with the obligation. It is not clear what sort of risk assessment tool would require to be created. Would it be one to assist the decision to release a prisoner or one to assist the management of risk once the prisoner is released?
The creation of one risk assessment tool for all forms of early release on licence—temporary release, HDC and parole—would overlook the very different natures of those various forms of early release. The duty to create a risk assessment tool would apply to all forms of release from prison, including automatic early release and release at the end of a prisoner’s sentence. The Scottish ministers would be obliged to create a risk assessment process to assess the risk that was posed by a prisoner whom they were duty bound to release and who would be released unconditionally.
Amendment 138 would also duplicate existing risk assessment processes across all forms of early release on licence. There are existing statutory provisions that require risk assessments for the purposes of HDC, temporary release and parole. There is a duty to consult certain bodies, and it might be implied that those bodies are to have regard to the risk assessment tool. One of the bodies that must be consulted is the Parole Board, which is completely independent of the Scottish ministers. Any implication that the Parole Board is bound by a risk assessment that is developed by the Scottish ministers could call into question that independence. That could give rise to a potential challenge to the Parole Board’s decisions on parole under article 6 of the ECHR, which covers the right to a fair trial. Indeed, the Parole Board expressed concerns about such an amendment and wrote to the Justice Committee about the matter at stage 2 and ahead of stage 3, so it is disappointing that those concerns seem to have been ignored.
Amendment 138, as drafted, would mean that courts would have to take account of the tool when imposing a community sentence that is listed in section 3(2). In imposing a community sentence, the court is not assessing risk for the purposes of release from prison, so such a risk assessment tool would have very limited relevance. Courts are experienced in making assessments of risk, and we must guard against creating legislation that risks impinging on judicial independence.
I also note that amendment 138 seeks to reintroduce into the bill the word “offender”, which the committee sought to exclude at stage 2 and which Parliament has sought to exclude at stage 3.
Amendment 139 would duplicate the existing statutory requirement to conduct a risk assessment for the purposes of releasing a prisoner on HDC. In addition, and more pressingly, there is a significant drafting concern that would make amendment 139 unworkable as a risk assessment provision if it were to form part of the bill. The wording of the proposed new section makes it clear that it would apply when a person was subject to a curfew condition. That means that the section would apply only after a decision to release was taken and would preclude any of the provisions being applicable to pre-release risk assessment. Accordingly, the duties relating to risk assessment in proposed subsections (2) and (3) would be impossible to comply with, as those duties would apply only to prisoners who had already been granted HDC.
Amendments 138 and 139 seek to address risk, but primary legislation already requires that risk assessment be carried out prior to releasing an individual on HDC, temporary release or parole. Amendment 127, in my name, would place an obligation on the Scottish Government to prepare and publish an operating protocol on HDC that would set out the procedures behind the HDC regime, including the process for risk assessment, as I have said. I believe that that approach is more robust than what is proposed in amendments 138 and 139, and it would meet the intention behind those amendments of ensuring greater transparency in the risk assessment process.
Accordingly, I urge members to reject amendments 138 and 139, which are unnecessary and, in places, unworkable and should not form part of the bill.