Parliament will be well sighted on amendment 105 and the reasons for it, and it is imperative, in my view, that Parliament has its say. Members will be aware that, under the bill as amended at stage 2, offenders who were out on a tag could cut off their tag and would not be considered to have committed a criminal offence. I find that extraordinary. There should be an immediate power of arrest, and amendment 105 would provide that.
The reality of the increase in the use of tagging means that someone would be in prison but for the tag that they are wearing. We must surely, therefore, treat the removal of a tag as seriously as if the person had breached the prison wall.
Parliament will be reassured to note that Scottish Women’s Aid made clear to the committee in its stage 1 evidence that a criminal offence in such circumstances is needed if there is to be a credible deterrent. Victim Support Scotland, Community Justice Scotland and Positive Prisons? Positive Futures called for robust responses to breaches of monitoring conditions.
Again, the committee rightly raised objections at stage 2 and, no doubt, Parliament would wish to hear them answered. Fulton MacGregor was uncomfortable that such an offence seemed to be punitive. I can only respond that of course it is punitive, because the offender has done something that is akin to breaching the prison wall.
The cabinet secretary was concerned that someone might need to remove a tag for medical reasons and would then be further criminalised as a result. I was not convinced that that would happen, and I remain unconvinced. I do not foresee some sort of strict liability around the provision, but I see the need for reassurance, which is why I have added the defence of removing the tag for medical reasons.
If the legislation is going to increase the number of offenders on tags, the appropriate protections must be in place. That means making it a criminal offence to tamper with or damage a tag, and I seek Parliament’s support for amendment 105.
For similar reasons, we will support Daniel Johnson’s amendment 130 if he chooses to move it, and we will oppose amendment 104, which seeks to remove what was a sensible amendment at stage 2 that aimed to ensure that the police have powers of arrest when an offender has cut off their tag. The stage 2 amendment was lodged in response to evidence that the committee heard from the police that there are legal grey areas around their powers to apprehend, and the provision is now in black and white in the bill.