– in the Scottish Parliament on 18th September 2019.
The next item of business is a debate on motion S5M-18896, in the name of Liam Kerr, on restoring trust in criminal sentencing.
I have lodged this motion because I am sure that all of us in the chamber have met victims and their families who have expressed disbelief and horror at what they feel were less than clear sentences.
Victims rarely understand the justice system, and we know that they find the court process difficult and intimidating, but, having got to the end of that process and secured a guilty verdict, at least some victims may find some peace and a sense of justice. However, then, only halfway through their attacker’s prison sentence, they may discover that their assailant is back on their streets, in their community, in their public space. Imagine how destabilising that would be and how vulnerable that victim would feel. [
Excuse me, Mr Kerr. This is a quiet chamber at the moment, and I can hear Mr Neil’s and Mr Lyle’s conversation at the back of the room. They cannot hear me, they are so busy talking—yes, I am talking to you two.
Thank you, Presiding Officer.
That is the reality, because every criminal who is sentenced to under four years in jail is automatically released halfway through their sentence.
Can the member enlighten us about which Government introduced that automatic release measure ?
I am happy to. It was introduced by the Conservative Government, which was seeking to wind it up in 1997 when a Labour Government came in and did not bother.
The Parole Board for Scotland does not even get a say in whether someone is released and, to add insult to injury, there is usually zero supervision of the released person. Offenders walk free without even an obligation to check in with a social worker. That retraumatises victims and it puts our communities at risk. No wonder a majority of Scots think that the justice system is too lenient.
We should not forget that prisoners who are sentenced to four years or more are still automatically let out six months earlier than their full sentence.
I think that we should be up front with people and say that, if a criminal is sentenced to three years in prison, they will serve three years in prison. Further, by abolishing automatic early release, we can prioritise rehabilitation in the prison environment. The Justice Committee heard just this week about how effective throughcare, work and education can be. Today’s debate gives the SNP a chance to vote for a motion that simply reiterates what the party has promised to do several times in the past.
As an extension to that principle, we also think that it is crucial that the courts are completely up front about what a sentence actually means when it is handed down. It is surely wrong to say that a criminal has been given a six-year jail sentence if the truth is that they may be released after only three years. When a criminal is spotted on the high street substantially earlier than expected, that just angers the public and retraumatises victims. Surely it would be better for everyone if courts were to label a sentence as accurately as possible, for example by calling it a three-year sentence with the possibility of further time depending on conduct and rehabilitation.
W hat of life imprisonment? What a misnomer. When the 34-year-old killer of nine-year-old Scott Simpson was sentenced to life imprisonment—the mandatory sentence—what the judge really meant was a punishment part of a minimum period in prison, followed by the possibility of coming out. His punishment part was originally 25 years, but that was reduced to 20 years. Yes, his first application for parole was refused but we—or, more concerningly, the family—can expect further applications next year. Similarly, when a judge told Paige Doherty’s killer that he was getting life imprisonment, he meant that there would be a punishment part of 27 years—reduced to 23 years. Then there is the vile killer of Alesha MacPhail, whose punishment part has been reduced to 24 years. He will be younger than I am now when he is eligible to be released.
The reality is that a life sentence is really a lengthy jail term.
Liam Kerr mentioned the horrific case of the brutal murder of Alesha MacPhail. Does he recognise that his own proposed bill for whole-life custody, which is out to consultation at the moment, would not affect that very case? As his own consultation says, it would affect only those who are 21 years old or older. Of course, Aaron Campbell is significantly younger than that.
Before Mr Kerr rises, I note that I have time in hand, so members need not be concerned about interventions—during the early part of the debate, at least.
I understand the cabinet secretary’s point, and I will come back to whole-life sentences—he should have no fear of that.
The point that I am making is about a life sentence being, in reality, a lengthy jail term, whereby, if the prisoner can keep their nose clean, they will have a second chance of life on the outside—a second chance that is denied to victims.
All I am asking is that we jettison the terms “life imprisonment” and “life sentence” when more than 70 per cent of such prisoners spend less than 15 years in prison. On that point, it is right that prisoners get the opportunity to earn early release—we must seek to rehabilitate. Therefore, conditional, risk-assessed and closely monitored early release has an important role to play in ensuring that an offender is ready to be liberated. However, for the most vile criminals who commit the most appalling acts, it is my belief that life should mean life and that there should be no chance of release.
At the moment, as demonstrated by the cases that I have talked about, the fact is that—unlike in England and Wales—Scottish judges simply cannot hand out a sentence that ensures that the very worst murderers and sexual offenders are never released to offend again. I hear those who say that we can engineer life sentences by setting a punishment part that is higher than the criminal’s life expectancy, but what is transparent about that?
The reality is that it is only in the cases of people such as Peter Tobin, who was in his 60s when he was sentenced, that there is pretty much no doubt that they will never leave prison. Whole-life sentences are a clear and unambiguous option—rarely used but vital—that we should give Scottish judges.
I called today’s debate because we need to restore public trust in the justice system. I have suggested several ways to do that, and my colleagues will develop those points as we go through the debate. In summary, we can do it by abolishing automatic early release for all short-term and long-term prisoners; using genuine language around sentencing so that victims, families and communities know what to expect; and by at least having the debate on whole-life sentences that the public has signalled that it would like to see. Is the Parliament really going to vote against a motion that seeks to restore trust in the justice system? We shall see.
That the Parliament believes that urgent action must be taken to restore public trust in the justice system, including the abolition of automatic early release for all short-term and long-term prisoners.
Although I disagree with his motion—to which we have, of course, lodged an amendment—I thank Liam Kerr for bringing today’s debate. It is an important debate for us to have in relation to trust in the judiciary, for example.
I want to lay out why public trust is important, what lies at the heart of the Scottish Government’s approach to sentencing policy, and why it matters to us all in the chamber that we talk about approaches to criminal justice policy that are rooted in fairness both for victims—yes—and in relation to rehabilitation. I also want to lay out why we in Scotland cannot go on locking up more and more of our citizens in numbers that are far in excess of those of most mainstream countries in Europe.
The criminal courts make decisions that are of vital importance to all of us, day in and day out. They have a very challenging job in making decisions that can affect us directly, if we are involved in a court case, and indirectly, through the experiences of family and friends who are either accused of crimes or victims of crimes.
It is no exaggeration to say that maintaining public confidence in the criminal courts is absolutely essential to maintaining law and order. We can imagine a scenario in which people did not have confidence in the justice system—victims would be discouraged from reporting their experiences, and wider public confidence in the ability of that system to keep communities safe would be undermined.
Although I will reflect on what the survey that Liam Kerr quoted said in relation to the percentage of people who think that sentences are too lenient, it is also fair to say that, in the very same study from which he quoted, nearly two thirds of people agreed that Scotland’s justice system is fair to all, which I am pleased about. I am, of course, keen to improve that level of confidence and trust further.
At the heart of the Scottish Government’s approach to sentencing policy is a very simple fundamental position, of which we must not lose sight. It has been absolutely central to the debate that has occurred in the past couple of weeks, as is illustrated by the events that are happening in the Supreme Court in London as I speak. That position is that, in all cases—without exception—sentencing decisions are for the independent courts and judiciary to make, based on the facts and circumstances of each case. Of course I accept that that must be done within the overall legal framework, but so much of that framework is based on case law that has come before our courts in the past. The courts hear all the evidence and are best placed to weigh up all relevant considerations in reaching a sentencing decision. That is not to say that I necessarily agree with every sentencing decision that is made by a court. However, whatever personal view I might hold about a case is, frankly, irrelevant. Courts must be allowed to reach decisions without fear or favour in relation to anyone—especially politicians, and regardless of whether they are in government or in opposition. I respect the independent role of the courts and hope that every other member in the chamber does the same.
The way to improve the already high level of public trust in the justice system and sentencing is to help people understand better what I accept is a complex system. I have listened to what Liam Kerr had to say and I do not disagree with too much of it in so far as it relates to the complexity of sentencing, about which I hear from victims time and time again. I assure the chamber that it is one of the central issues that the Lord Advocate and I, as co-chairs of the victims task force, are looking at in relation to how we might demystify sentencing.
I was about to quote from a speech that Lady Dorrian gave, but I will give way to Liam Kerr before I do so.
I am grateful to the cabinet secretary for taking my intervention, but I am concerned about what he said about automatic early release. Does he think that it is right that a criminal who has been sentenced to two years might get out after only one
, regardless of their conduct and rehabilitation status?
Abolishing automatic early release for short-term prisoners is not the right thing at all. A couple of days ago, I was questioned about—
No, I will not. I ask Mr Kerr to give me a second to develop my point. Yesterday in the chamber, I took questions about our prison population, which I think that we can all agree is far too high. If Mr Kerr wants to intervene on this point, he can do so. As a member who advocates the abolition of automatic early release for short-term prisoners, does he know the impact that that would have on our prisons? Does he know how many prisoners it would add to our system?
The cabinet secretary will recall that, in 2006, he gave
The Herald a quote to the effect that he was in favour of abolishing automatic early release. I am therefore interested to hear him make a U-turn now. However, does he accept that overcrowding cannot dictate sentencing practice, because to do so would be to put the cart before the horse?
First of all, whatever I said then in
The Herald would have been about abolishing automatic early release for long-term prisoners, which the Parliament chose to do in 2015—although I remember that, interestingly, the Conservatives abstained on that very vote. However, if it were to be applied to short-term prisoners that policy would add approximately 3,500 to our prison population, leading to a total of 11,500 prisoners. To cope with the resulting demand, we would have to build three more Barlinnies. That is not the type of Scotland that I want to see; I want us to focus on rehabilitation and alternatives to custody that help to rehabilitate offenders so that we have fewer victims of crime.
I realise that I am running out of time, but I think it important that I read the quote from Lady Dorrian that I mentioned. She said:
“Without sufficient knowledge and understanding, public debate and discussion around sentencing is at risk of becoming a simplistic and uninformed argument between prison and ‘soft touch’ justice, between being tough on crime and letting offenders walk free.”
I will end on that very point. However, I do have more to say on it, so I will focus on it in my closing remarks.
Liam Kerr is not an uninformed or simple individual; he understands such matters and is intelligent. However, I say to him that suggesting such extraordinarily populist policies that are rooted in sound bites will not do the justice system any favours at all—for victims, let alone offenders.
I move amendment S5M-18896.3, to leave out from “believes” to end and insert:
“, while acknowledging that more can always be done to ensure that public confidence in the justice system is high, notes that a recent survey conducted on behalf of the Scottish Sentencing Council found that nearly two thirds of the public considered that Scotland’s justice system was fair to all; further notes that automatic early release was introduced by the UK Government in 1993, and that the previous system of automatic early release for long-term prisoners was ended by the Scottish Parliament from 2016, and considers that future reforms to sentencing policy should be informed by evidence of what works to reduce reoffending and take appropriate account of Scotland’s current internationally high rate of imprisonment.”
I welcome the opportunity to speak in this Conservative business debate, which has been brought to the chamber by Liam Kerr.
I am not closed to the idea of a discussion or debate about the idea of ending automatic early release. However, any change to the policy would need to be evidence based and the result of proper engagement and discussion, and we have not reached that stage yet. I feel that there has been a rush to judgment on the subject by the Conservatives.
I note that automatic early release was introduced by the UK Conservative Government in 1993, as has been mentioned, and that this Parliament amended the policy in 2015. Only sentences of under four years are subject to automatic early release, so there have been changes over the piece.
As others have said, it is important that there is transparency around and trust in sentencing, and we have to acknowledge that there remains a challenge with certain groups among the public in winning that trust. The Cabinet Secretary for Justice quoted the survey by the Scottish Sentencing Council in which two thirds thought that sentencing was fair. However, it is reasonable to point out that that means that a third did not think that sentencing was fair. That shows that there is still a big challenge to be met.
That challenge can be met partly through the work of the Sentencing Council, but it is disappointing that, in three and a half years, it has produced only one suite of guidelines and work. In its recent business report, it says that it will be 2021 before we get new guidelines and recommendations on sexual offences. There needs to be greater speed around that work.
As the cabinet secretary pointed out, there has been discussion in recent days about the Scottish Prison Service and overcrowding, and the discussion that we are having needs to be seen in that light. There are challenges for the Scottish Prison Service around budgets and having fit and capable prison officers in place to ensure that the service runs properly. That is a challenge when there are increases in sickness absence levels of over 60 per cent.
The issue for the Conservatives is that the policy that they are proposing has, from what I can see, little evidence to back it up. It would involve increasing prison capacity, but they have not in any way answered the question of how they would solve the overcrowding crisis. Would they build more prisons? We have not heard.
I can give you the time back if you want to take the intervention, Mr Kelly.
I thank the member. Does he recognise that the remand population, which includes people who should not be on remand, is the area that we should be looking at in order to reduce overcrowding?
There are different ways to look at reducing the prison population—some of them have come up in recent days—but if we consider the central thrust of Liam Kerr’s various proposals, the policy intent would be to increase the prison population, and I have not heard the Conservatives address how they would deal with that.
The other issue that needs to be borne in mind is that the Conservatives are not dealing with some of the underlying issues that are feeding into crime. For example, Police Scotland has acknowledged that policies such as welfare reform and the introduction of universal credit are pushing up crime rates in relation to housebreaking. We have seen robberies rise by 30 per cent over five years.
There is a lack of evidence to support the proposals that the Conservatives have made, and we have not heard how they would address the overcrowding of prisons or how the underlying problems in relation to crime should be addressed, so we will oppose the Conservative motion at decision time.
I move amendment S5M-18896.2, to leave out from “the abolition of” to end and insert:
“providing better support and advice for victims and their families, but considers that any changes to early release must follow an evidence-led debate about what is in the public interest, and full consultation with all relevant parties, including the Scottish Courts and Tribunals Service, Scottish Prison Service, Parole Board for Scotland and the wider public.”
Mr Kerr has brought a philosophical debate to the chamber. I have to say that I increasingly find Mr Kerr’s views distasteful. I am not convinced that they are personally held but I know that he is keen on an evidence base for issues.
I do not want to have this debate on Mr Kerr’s ground. I understood that this was to be a debate about the wider aspects of our justice system, so I find it unhelpful for people to keep throwing out the mantra about a lack of public confidence in the justice system, and I do not know where Mr Kerr’s base for that would be. If we shape our views around exceptional events rather than the norm, we are going to have some difficulty.
We know about the view that Mr Kerr takes, because his motion talks about short sentences and the presumption against them. I will quote from the evidence that the Justice Committee received from Community Justice Scotland:
“there continues to be widespread support among professionals and academics, particularly stakeholders in community justice, for the use of community options over short custodial sentences wherever possible and appropriate.”
Appropriateness is the thing. I think that it was the cabinet secretary who talked about having confidence in the judiciary. I have confidence in our judiciary ensuring that the public is protected from individuals who pose a threat to them.
It is important that the wider implications of some of the things that have been suggested are also taken on board. Members have talked about the discussions that have been had in recent days about our totally unacceptable prison population. The idea that private companies are profiting from that prison population—I am sure that that appeals to Mr Kerr and his party—is also entirely unacceptable.
Mr Kelly talked about recognising some of the drivers of crime. Police Scotland has acknowledged that social conditions are a factor that drives its workload. We must acknowledge that.
On the point about victims, the view of Community Justice Scotland was:
“Short sentences are associated with greater rates of reoffending than other sentencing options. This suggests that if we are serious about preventing the creation of new victims, something different is required.”
That is what is missing from this debate. Members will be aware that the Scottish Green Party submitted an amendment to the motion, but it was not selected. It covered some of the things that we need to be doing.
We recognise the benefits of greater diversion from prosecution and we encourage that. We know that alternatives to custodial sentences require the judiciary to have faith in them. If it is to have faith in those alternatives, they must be robust, and if they are to be robust, they must be properly funded. Rather than millions going to provide additional places in private prisons, we should imagine the impact that that money would have if it was put into community options. We really need to get on with that.
The other thing that we need to get on with is the reinstatement of throughcare support in the Scottish Prison Service. I see nodding heads. That is about capacity and the implications of having overcrowded prisons. The Justice Committee heard yesterday from Prison Officers Association Scotland about the unacceptable number of assaults that are being caused by overcrowding, and their implications for staff. Any employer will assess the implications of the workplace conditions for their staff. A well-documented implication of the situation is that the number of officers who are off because of an assault or because of pressure of work simply compounds the problem.
We do not need to put more people in prison. We need to find robust alternatives to that. We also need to debate this in terms of finance. It seems that there is a broad consensus among four of the parties in Parliament that we need to move away from the embarrassing situation of having the largest prison population. That means a transfer of resources.
On these occasions, it is customary to welcome the debate and to thank the person or party for allowing Parliament to have that debate. Frankly, on neither count am I minded to observe that protocol on this occasion. Of course Parliament should never pass up the opportunity to debate issues with our justice system, including sentencing policy, and there are plenty of issues on which the Scottish Government should be held robustly to account. We have centralisation and a police force that is chronically underfunded, working in buildings and with equipment that are often not fit for purpose, and using analogue technology in a digital age.
At topical questions yesterday, I highlighted that the Crown Office is struggling to manage its case load and presiding over a system of fatal accident inquiries that is beset by delays. Everybody has accepted that our prisons are overcrowded, underfunded and rapidly reaching crisis point—if they are not there already. Yet, with spectacularly poor timing, the Tories have brought forward plans for how we can lock up more people for longer, in the week when Audit Scotland has laid bare the urgent need to reduce our prison population, which is among the highest in the western world.
No, thank you.
We have a higher percentage of lifers than anywhere else in Europe. I am not sure whether Liam Kerr and his colleagues believe that Scots are genetically more predisposed to offending—
No, thank you.
T he Conservative members’ desire to see more of our fellow citizens banged up with little or no hope of release suggests that perhaps they do.
Two thirds of our prisons are already at or beyond capacity. Time and again, the Justice Committee has heard compelling evidence that that is putting staff, prisoners and the wider community at risk. Throughcare in our prisons has been suspended. Sickness absence among staff is almost at record levels. Attacks on staff and other prisoners, as well as incidents of self-harm and attempted suicide, are on the increase. What in all of that suggests to the Tories that the answer is higher levels of incarceration?
They have certainly shown no appetite for reducing the prison population.
No, thank you.
They opposed extending the presumption against short sentences, which are often ineffective and actually increase the risk of reoffending. They opposed increasing the use of electronic monitoring to give judges and sheriffs greater reassurance when considering non-custodial sentences.
Instead, the Tories say that they want so-called “honesty in sentencing”. In truth, the approach is nothing of the sort. It calls into question the independence of the judiciary and our courts. It undermines the professionalism and discretion of the Parole Board for Scotland. It is a populist, punitive approach that has proved disastrous in many states in the US, leading to mass incarceration and the creation of wider social problems.
Not only is it ineffective in reducing offending, reoffending and the risk to our communities, but it is counterproductive and massively increases costs to the public purse. Expanding our prison estate to accommodate the additional numbers that are required under Liam Kerr’s delusional tough justice strategy would come with the heftiest of price tags. David Gauke and Rory Stewart—both former UK justice ministers and colleagues of Mr Kerr—recognised that and would be appalled at the dog-whistle politics that are being engaged in by the Scottish Tories.
The Howard League summed up perfectly the nonsense at the heart of Liam Kerr’s approach. It said:
“We all know that Scotland’s prisons are over-crowded, which has serious implications for both prisoners and prison staff. The idea that we should unnecessarily add to this pressure is flawed, illogical and a good example of political posturing at its very worst. This will not make Scotland safer. It may be what the Scottish Conservatives want, but it’s not what Scotland wants or Scotland needs.”
I agree whole-heartedly with the Howard League, and I urge Parliament to vote for the amendment in the cabinet secretary’s name.
I am pleased to speak in this Conservative Party business debate. At all times, Scotland’s justice system needs to promote fairness, transparency and integrity; only upon those principles can trust and public confidence be founded—I am sure we can all agree on that.
However, as it currently stands, criminal sentencing is not of the standard that it should be. Across the criminal system, we see the continued use of automatic early release, the inaccurate definition of “life” sentences and an effective ban on short-term prison sentences. The intent may be to favour rehabilitation and integration, but surely the priority must be, first and foremost, to serve victims of crime, and to achieve that, our justice system needs to hand down entirely just sentences to perpetrators.
Sentencing must be accurate and appropriate, taking into account the crime and the offender, but only 38 per cent of Scottish people believe that the current sentencing system fits the crime. That points to public disillusionment in our justice system, which needs to be addressed.
Transparency needs to be at the heart of how sentencing works in Scotland. Today, we have a system that does not always give an accurate picture of the true length of criminal sentences.
For example, since 1971, more than 70 per cent of so-called life prisoners have completed less than 15 years of prison time, and handing down a life sentence can mean as little as 12 years. We must recognise the message that that sends to victims of crimes. For instance, when so-called life sentences are considerably shortened, that potentially impacts the mental health of those who have already experienced the trauma of crime.
For sentences that do not always give a true indication of length, we need to push for clarity, and courts must strive to hand down prison sentences that are accurate and truthful, especially for the sake of victims. In short, we must push for an honest sentencing system.
As part of that, a key proposal that we have put forward today centres around whole-life custody. We must be clear that it would be the starting point for sentencing an individual who has been found guilty of certain crimes, and it would be solely for those cases in which there is sufficient justification.
As I have said in the chamber before, when there is a high risk of reoffence with the worst crimes imaginable, a whole-life custody sentence is the safest route. If the proposal is adopted, it would ensure that for the most serious cases, victims and their communities could be much better safeguarded and feel a sense of security. It would put the safety of our communities at the forefront of judges’ decision making and give them greater agency.
Most people in Scotland believe that the primary purpose of sentencing is to protect the public, but the continued use of automatic early release for certain sentences does not prioritise public protection. Those sentenced to less than four years in prison can expect to be automatically released halfway through their sentence and those sentenced to four years or more are automatically released six months early.
The recent move by the Scottish Government to a presumption against short-term prison sentences does not answer the problem of crime effectively. With a reduced number of short prison sentences given, there is a rise in community sentencing, and the gaps with that alternative are not hard to notice. For example, over the past three years, almost a third of community payback orders have not been completed. Moreover, tampering with or removing a tag is still not automatically recognised as a criminal offence, and those who do so face no additional punishment.
Those lapses set a dangerous example to would-be offenders. It is of the utmost importance that community sentencing does not replace community safety. Due to those arguably lenient measures, public confidence in sentencing is at risk of decreasing further. Victims and, more widely, their communities need to have trust in the Scottish criminal system.
The Conservative motion would set back the Government’s progressive approach to criminal law reform by decades. I cannot understand the Tories’ refusal to accept that sentencing is not a ministerial matter. It is done by an independent body called the Scottish Sentencing Council, of which all members are aware.
Some recent high-profile sentencing decisions have been disappointing, but it does not serve any purpose to go into the details during the debate. They are undoubtedly what sparked the Conservative motion, but I feel uneasy about them being used as a political lever to fuel the debate.
No, thank you.
It is also extremely unrealistic to demand the end of early release for all short-term and long-term prisoners—in other words, for all prisoners. Public trust is important, but do the Conservatives not believe that every case is different and must be judged on its own merit?
No, thank you.
Does the Conservatives’ idea of justice mean taking a broad-brush approach to sentencing, regardless of individual circumstances, behaviour and, crucially, rehabilitation? Is that really the sort of justice system that we want in Scotland, where one size fits all and no one should strive for improvement? That is what the Conservative motion amounts to. Ironically, as we have heard, automatic early release was introduced by the UK Government in 1993, and the previous system of automatic early release for long-term prisoners was ended by the Scottish Parliament in 2015.
Our prisons are full. Scotland locks up more people than any other country in western Europe. The reasons for that cannot be explored in a short debate.
The Government is making great progress with plans for rehabilitation, restorative justice and a presumption against short sentences, and it is working to support victims as no other Government has done.
We are trying to pave the way to an evidence-based, more effective system that understands the root cause of crime and the consequences for victims. Days before losing his post as justice secretary, David Gauke appealed to the Prime Minister to “follow the evidence” rather than appeal to populist rhetoric on crime and punishment. Did the Scottish Conservatives not get the memo?
No, thank you.
Crime is at a record low, and members of the public now feel safer in their communities than ever before. A recent survey that was conducted on behalf of the Scottish Sentencing Council found that nearly two thirds of the public considered that Scotland’s justice system was fair to all. As I said earlier, the Conservatives’ hard-line idea would take us back decades. That is in no one’s interest.
At the outset, I spoke about the independence of the Scottish Sentencing Council. I cannot help but wonder whether the Conservatives believe in the independence of our judiciary system. The irony is that, if Government were to interfere in an entirely independent decision, we would be accused of being controlling and centralising.
Of course, the public must have faith in our justice system. We are putting that at the top of our agenda. However, the motion is unrealistic, unworkable and flies in the face of the modern, democratic justice system that we aim to build.
I agree with the first 18 words of the motion proposed by Liam Kerr:
“That the Parliament believes that urgent action must be taken to restore public trust in the justice system”.
However, that is where my agreement ends. More pressing issues in the justice system need urgent attention.
The Scottish Prison Service faces reduced budgets, increased prisoner numbers and rising stress-related staff sickness, all of which—according to Audit Scotland—threaten operational safety. There is also a seriously concerning mental health crisis in Scotland’s prisons. Last year, it was reported that self-harm has almost doubled, and more than 70 per cent of prisoners have mental health problems. That comes at a time when access to mental health support in prison has become worse as the Scottish Government fails to adequately help prisoners who have complex needs. I firmly believe that prison is not the most appropriate environment for people with severe and enduring mental health problems.
The Conservatives’ answer to those problems is to lock prisoners up for longer in a system that is failing them. Instead of focusing on the abolition of automatic early release, we should focus on helping Scotland’s prisoners to rehabilitate and on ending the cyclical nature of reoffending.
In the summer, the then UK Secretary of State for Work and Pensions launched a pilot scheme to help prisoners with job advice and advice on claiming benefits as they near their release dates. Prisoners at HMP Perth and HMP Cornton Vale are able to apply for benefits before they leave prison, so that they get universal credit payments on the day that they get out. Work coaches also provide enhanced employment support to help them to be in a better position to secure a job on release. Many prisoners face difficulties on release, and some of the biggest drivers of reoffending are the failures to find work and stable housing.
The most recent statistics show that, in Scotland, one in four people was reconvicted within 12 months of being released from prison. Instead of locking up prisoners and throwing away the key, the Conservatives should speak to their colleagues at Westminster about applying that scheme to all prisons in Scotland.
No, thank you—we have heard enough Tory rhetoric for one afternoon.
Further to that, many prisoners tend to have low skill levels. According to freedom of information requests, almost half of prisoners in Scotland are not functionally numerate and 30 per cent are illiterate. The lack of support for, and the underresourcing of, throughcare for prisoners creates the cyclical nature of reoffending and destroys trust in our justice system, whereas well-resourced community sentences equip those people with better skills, provide mentoring, get their lives back on track, root them with their friends, families and community, and reduce reoffending. That, rather than ineffective short sentences, will make Scotland safer.
The key to restoring trust is in properly resourcing the justice system to help care for prisoners’ mental health and provide them with the key skills that can help them to reintegrate into society and stop offending. Our justice system should pursue sentences that deliver proper rehabilitation and training. That would help to reduce crime, make communities safer and raise levels of trust in the justice system.
It seems that, whenever the going gets tough out there, the Tories turn to this issue. I have lost count of the number of times that I have spoken on similar issues, which have been raised mainly by Liam Kerr. It seems that the Tories have not learned from previous debates that their overall approach to justice is not in line with general public opinion or representation in this chamber. We can all have individual opinions on specific cases—
Liam Kerr mentioned one in which the victim lives close to my area—and, as Rona Mackay said, on the sentences that are given in those cases. However, it should not be on to do that as part of a debate and use it as a political tool—that view has been widely expressed.
I would, normally, because I have mentioned Liam Kerr, but this is a four-minute speech. I advise the Tories to look again at splitting their debating time as they have done today, because that gives us only four minutes each.
What is happening with sentencing just now works. W e need to have faith in our courts and the agencies that are involved in delivering the service. We know that crime is at a record low and that the future focus must be on community-based interventions. People feel safer and fewer people report being the victim of a crime now than they did 10 years ago. That said, we must be honest about where things are not so good and we can do better. It is clear that there is a high prison population and we must address that issue. Instead of Scotland being soft on crime, we are arguably the very opposite, and the evidence clearly suggests that community-based alternatives work. We should, perhaps, have a debate on that issue rather than on the issue that the Tories keep bringing to the chamber.
I will focus my remarks on community-based alternatives aimed at reducing offending and reoffending. I refer members to my register of interests, which states that I am a registered social worker.
I speak in support of the
Government’s amendment in relation to what reduces reoffending and takes appropriate account of Scotland’s current internationally high rate of imprisonment. We have heard from other members about the presumption against short-term sentences and the impact that that may have at both a practical level on our prison population and in terms of sending out a message about the sort of country that we are. Clearly, as the cabinet secretary has always said, that is not the only solution, and it is only a small part of the puzzle. However, it links into the argument about pushing people towards community sentences to address reoffending and initial offending.
Some examples of what is going on at the moment include ring-fenced funding for justice social work—more than £100 million is being protected in the budget; the violence reduction unit, a representative of which attended yesterday’s Justice Committee session on pre-budget scrutiny, and the amazing work that it is doing—I know that Liam Kerr will agree with that; and the Caledonia programme, which has been rolled out to address the scourge of domestic violence. The sooner that that programme is rolled out to all authorities, the better.
All of that has to be done on a trauma-informed basis. At this point, I will mention Dawn Harris and Alex O’Donnell, the latter of whom happens to be a constituent of mine. Both have extensive experience through Social Work Scotland, and they have co-designed a two-day evidence-based specialist trauma training package for social work staff and other key partners in the justice arena. Community Justice Scotland reviewed the training and was keen to support the initial stage of its development by funding a pilot and conducting a comprehensive evaluation. I am told that the initial evaluation has been very positive, and I have agreed to pass the details to the cabinet secretary’s team following his appearance at the cross-party group on adult survivors of childhood abuse last week, at which he reiterated his commitment to the area, which was very welcome.
I will briefly mention the Green amendment, which was not selected, which called for the Scottish Prison Service to reinstate its throughcare support service and for the Scottish Government to demonstrate its commitment by ensuring a significant transfer of resources from the prison estate to community-based alternatives. I could not agree more with that part of the proposed amendment.
At the Justice Committee meeting yesterday, we heard a very compelling case from groups in the third sector such as Families Outside
Sacro and the Wise Group about the valuable role that the service plays.
The committing of crime should be dealt with swiftly and fairly, and sentences should be handed down that are appropriate to the seriousness of the crime. The Parliament should, of course, never interfere in individual cases that are before the courts, because the independence of the judiciary is a pillar of our system and, indeed, our civilisation. However, the current sentencing system can be confusing and can seem misleading.
In a moment, perhaps. I would like to make some progress first.
The system is struggling to maintain its public credibility on several fronts, not least in the light of distressing cases such as those of Michelle Stewart and Alesha MacPhail, in which sentences have been reduced for the offender while the families still struggle to come to terms with the death of their children.
The policy of whole-life sentencing is an example of something that should be seriously looked at. Scottish judges should have the full power to punish criminals, protect the public and rehabilitate offenders as they see fit—I think that the cabinet secretary agrees with me on that, as he emphasised at the outset of his remarks that judges decide those things. Indeed, that is the point of giving judges the power of whole-life sentencing. The Parliament decides the law and the powers that the judges have; the judges then decide whether to exercise or apply the powers in individual cases.
The First Minister supported the ending of early release in 2015. However, offenders with sentences of under four years are still released automatically halfway through their sentence, while sentences of over four years still allow prisoners to be released six months early by default.
Early release should always be discretionary and earned, not automatic. Reform Scotland has said that the Scottish National Party Government, despite claiming to have ended the practice, still has not. That is compounded by the Government’s presumption against custodial sentences of under 12 months, which must mean that there has been a correspondent rise in the number of community sentences. However, the Government’s own work statistics state that more than 30 per cent of community orders were ignored last year and that only a quarter involved any kind of unpaid voluntary work in the community.
It is clear that the community payback system is not working for many of our communities. That position is backed by Victim Support Scotland, which said, when it gave evidence to the Justice Committee last year, that
“communities have no faith in community sentencing.”—[
Official Report, Justice Committee
, 8 May 2018; c 39.]
Empty statements about smart justice will be cold comfort to those who live with the effects of crime in their communities and on their families. Victim groups such as Scottish Women’s Aid and Victim Support Scotland argue that the current practice poses a greater danger to those whom custodial sentencing is meant to be designed to protect.
It is important to emphasise a point that has already been made. We should not view things backwards. We should not start by saying that prisons are too full; we must change the law to reduce the number of people in prison. We need to look at how the system is not working. Of course, considerations such as the size of the prison population compared to the size of the prison populations in other countries are relevant, but they show only that there is a difficulty with the way in which the system is set up.
It is time for serious reconsideration of the systemic approach to sentencing in our country. For that reason, I support the Scottish Conservatives’ motion.
I think that we all agree that public trust in our justice system is essential and that facts, as opposed to assertion, are important. My first facts are that automatic early release was introduced by the UK Tory Government in 1993 and that the previous system of the automatic early release of long-term prisoners was ended by the Scottish Parliament from 2016. I have never been one to support the Labour Government that was in power in the UK, but blaming it for automatic early release, which the Tories introduced, is taking things a little too far.
Members have referred to the results of the 2017-18 Scottish crime and justice survey. That survey is important, because the Tory narrative is explicitly that the public do not have trust in our justice system. That view is not borne out at all in the Scottish crime and justice survey, which does not fit the Tory narrative in any way and says that more than three quarters of adults have confidence in our justice system. Clearly, no system is perfect, and any system needs to adapt and reflect the views of society. However, the survey does not fit the Tory narrative of a lack of public confidence. For people to maintain their confidence in the system, it is essential that change is implemented thoughtfully, on the basis of sound and robust evidence that reflects the wishes of our society as a whole.
The SNP manifesto in 2011 was up for abolishing automatic early release, and, in 2015, Nicola Sturgeon was up for abolishing it, but now the cabinet secretary says that he does not want to abolish it. What is the member’s position?
The cabinet secretary has laid out very clearly the position on automatic early release.
Other survey results show that 90 per cent of people believe that prisons should help prisoners to change their behaviour rather than be used just to punish; that 92 per cent believe that prisons should provide support to prevent people from committing more crime; and that 89 per cent believe that prisons should work with other organisations in the community to help prisoners to fit back into the community. That is the type of justice system that people want, and that is where their confidence lies. It is our responsibility to reflect those views in helping to shape the system.
The Scottish Government took a thoughtful and evidence-based approach in its response to concerns about the rights of the victim. That response set out the establishment of the victims task force; the introduction of the victim surcharge; plans to give victims a greater say before offenders in prisons are given temporary release; the introduction of the victim notification scheme, through which victims of life-sentenced offenders are given the opportunity to make representations in person ahead of decisions about temporary release; and plans to continue to consult on further opportunities for victims to describe their experiences of the parole process in the way that works best for them.
It is also important to respect the judiciary’s independence, to which a number of members have referred. Just the other week, Jackson Carlaw said that he had absolute confidence in the independence and integrity of the Scottish judiciary, but that is somehow being questioned in this debate. Of course, we all have concerns about individual cases, and we sometimes think, “Why was that decision made?” However, that should not be the basis on which we frame law and policy. We must set laws and policies that ensure the fairest justice system, which is why, sometimes, we must take a step back.
I know that Liam Kerr will have heard what eminent voices in the Scottish legal profession have said. People have expressed concern and have said:
“The Parole Board and Scottish Ministers are already empowered to prevent the release ... of life sentence prisoners considered to be a continuing risk to the public, and to recall to custody anyone who has been released under lifelong conditions whose behaviour (or even attitude) causes concern.”
We need to look at the evidence when we make policy and law. We should not resort to what I would describe as dog-whistle politics, because that will result in bad law and bad policy.
Having reflected on the debate, I think that the Conservatives’ choice of subject is unfortunate. I have listened to the speeches from members across the chamber, and the Conservatives could have picked a topic that would have got more support and which we could have examined seriously.
John Finnie’s speech is an example. I regret that the Green amendment on throughcare in the prison system was not selected for debate, as the issue has come up in recent days. The Scottish Government suspended the throughcare service in July, but throughcare is important in providing support to prisoners as they move towards the end of their sentence and being let out into the community. Providing proper throughcare can give prisoners an element of strong stability as they are released, and it can reduce the rate of reoffending, which, unfortunately, happens in some cases. That could have been a good topic for serious discussion in the Parliament. Fulton MacGregor also acknowledged that. Indeed, the topic was commented on by the Cabinet Secretary for Justice and discussed at the Justice Committee yesterday.
It is important that any proposals on throughcare ensure that, when the service is reintroduced—which it should be as soon as possible—it is not diluted in any way. The throughcare service, before it was suspended, was supported by 42 officers. There has been discussion about the shortfall being picked up by the third sector. If it is to do so, it needs to get proper funding, so that it can carry out the work adequately.
Mary Fee made an important contribution by citing substantial statistics on the issues that prisoners are suffering from, including mental ill-health, and highlighting the shortcomings in the provision of mental health support.
Overall, the issues that need to be addressed are clearly to do with sentencing. I was glad to hear Gordon Lindhurst and Shona Robison acknowledge that we must respect the independence of the judiciary. It is a bit unfortunate when people pick out individual cases. That is right when they want to question and try to change the policy, but, ultimately, once the policy is set, I do not think that it is right to try to undermine the independence of the judiciary.
I am sorry, but I am short of time—I have only four minutes.
Prisons have been mentioned a great deal. There are clearly issues to do with how we address overcrowding and how we get the balance right between those who quite correctly serve custodial sentences and the use of community justice. What runs through all that is the issue of finance.
Interestingly, at yesterday’s Justice Committee meeting, we heard that it costs £35,000 a year to keep someone in prison. That is a substantial amount of money. Consideration needs to be given to any policy that would change that approach. Ultimately, the balance between how we fund the running of the prison service and support for prisoners and how we fund support for community justice requires an honest discussion about financing.
It is regrettable that the Tories have made a proposal in this debate that is neither evidence based nor the result of proper engagement. The debate has been about chasing headlines, rather than addressing some of the serious issues in the justice system that we could have spent this time discussing.
We have heard the Scottish Conservatives’ demands to end automatic early release—the scheme that the UK Conservative Government brought in for Scotland back in the 1990s. This Government ended the scheme for serious offenders in 2015, with a vote on which the Scottish Conservatives abstained.
As others have said, the simple truth is that there are times when our prisons are full. Scotland holds more of its people in custody than any other country in western Europe. Ending automatic early release for short-term prisoners, as suggested by the Scottish Conservatives, would add catastrophic pressure to an already pressurised prison system. That would result in 3,500 additional prisoners and require the building of three Barlinnie-sized prisons. As Liam McArthur said, such a policy would be at considerable cost to the public purse. There has to be a better way of doing things.
I am happy to listen to proposals that come from across the chamber that would help to make our justice system more transparent. I heard the Conservative members getting quite annoyed and angsty when other members were suggesting that they were questioning the independence of the judiciary to make decisions.
They should reflect on the contributions that they have made. To give just one example, Maurice Corry said that judges must hand down “honest” sentences—members can check the
Official Report after the debate. Is he seriously accusing the judiciary of handing out dishonest sentences? We must be careful with the language that we use.
If Liam Kerr will give me a second, I will quote an article by him.
I will quote Liam Kerr and then I will take an intervention.
In an article of 16 September, Liam Kerr talks about how he has met families who are disgusted with the experience of the justice system and then says:
“Frequently this is because of what they see as outrageous soft-touch sentences that are handed down in the SNP’s Scotland.”
Those sentences are not handed down by SNP politicians; they are handed down by the independent judiciary. It is shameful to attempt to align them with the Government’s politics.
I will give way to Maurice Corry.
The words that I used were clear. In other words, I said that the judge should look at the offender’s case and ensure that they are appropriately punished or that the appropriate sentence is applied using an honest approach that is not influenced in any way. That is what I meant.
Again, the member has used the word “honest”. Our judiciary do not take a dishonest approach.
Conservative members are groaning, but I have just taken an intervention and I have two minutes to go.
I accept that the system of sentencing can be difficult to understand. A key role of the Scottish Sentencing Council is to aid public understanding of sentencing, and the council undertakes a range of activity to help with that. However, let us not forget that the current complex system was largely put in place by the UK Government in the mid-1990s.
Courts often seek to explain what sentences mean in practical terms. For example, the court will always clearly explain what a life sentence means and what the punishment part of a sentence is. Can we do more? Can the courts do more? Can the Government look at the systems that we have in place with all the justice stakeholders? Yes, I think that we can, and the victims task force will take that forward.
I want to be clear that it is absolutely right that the courts should have the necessary powers to ensure that those who commit the most heinous crimes can be punished effectively, and the courts have those powers. The law is clear that, when the court is setting the punishment part of a life sentence, it can set a period that exceeds the rest of a person’s life, and courts have done that in previous cases. I firmly believe that courts should have those powers and that it should be for the court to determine when to use those powers in any given case.
Discretion for the courts to sentence within the overall legal framework is at the heart of the Scottish Government’s sentencing policy. If there are proposals to change that framework, members should bring those forward. In fairness to Liam Kerr, he has brought forward his proposed whole life custody (Scotland) bill, but I understand from experts in the field and criminologists that those proposals have already been somewhat discredited.
Presiding Officer, I am not sure how much more time I have.
I will end by talking about the other amendments. John Finnie’s amendment was not selected for debate, but I hear what he says about throughcare. James Kelly and Fulton MacGregor have made the same point to me. I hope that I will be able to do something on that in the coming days or weeks. I will ensure that I reflect on the points that John Finnie makes. Although I accept and agree with most of his amendment, we are not able to rebalance resources from the prison system to community justice at the moment, because we have 8,200 prisoners. However, in future, that is absolutely the plan and it is where we want to be. I do not take away from the point that we have to bolster community justice and consider additional funding for and investment in community alternatives. I believe in that and we have done it.
I agree with much of James Kelly’s amendment, too, although I suspect that our amendment will pre-empt his. Nonetheless, I am encouraged by his focus on an evidence-based approach. James Kelly is new in his role, and I am encouraged by the fact that he has often spoken about taking such an approach. I am sure that he and I will agree on that in the years to come.
The debate has been good and members—at least all those who oppose the Conservative motion—have made excellent points. They have made the point that we want a justice system that is of course rooted in transparency and one that is evidence based and is fair to victims while supporting rehabilitation. I therefore ask members to reject the Conservative motion and to vote for the Government’s amendment in my name.
This has been an important and somewhat heated debate, which has generated diverse and even diametrically opposed views.
That is perhaps not surprising. Sentencing is an emotive subject, as is evidenced by public reaction when an individual who has been released from prison goes on to reoffend. Reactions can range from frustration to outrage, depending on the circumstances and nature of the reoffending. In some instances, the crimes that are committed have devastating consequences and ruin lives.
The report “Scottish Crime and Justice Survey 2017/18: Main Findings” does not make encouraging reading. It reveals that the majority of Scottish adults do not have confidence that the punishments that are handed down by the Scottish courts fit the crimes committed. That answers a point that John Finnie made.
Not many interventions have been taken in the debate, so if
Mr Finnie does not mind, I will develop my argument and talk about why we called for the debate.
The cabinet secretary has acknowledged that public confidence is essential to an effective criminal justice system. The survey should therefore be a wake-up call for politicians and legislators who, by virtue of being elected, are in the privileged position of being able to influence and determine sentencing policy. Perhaps James Kelly and Mary Fee, who questioned our bringing this topic for debate, should reflect on that.
Let me put sentencing in perspective. It is an issue that potentially affects any one of us, at any time in our lives—whether as victims or perpetrators or as the families and friends of victims or perpetrators.
There is a huge spectrum of disposals following a conviction for an offence. Disposals range from a deferred sentence and a fine or community payback or service order to a prison sentence. Prison—depriving an individual of their liberty—has four purposes: to protect the public; to punish; to deter; and to rehabilitate.
A life custodial sentence is mandatory for murder and is also available, at a judge’s discretion, for rape and seven other sexual offences. However, the term “life sentence” is misleading. If it appeared in an advert, it could easily fall foul of trade descriptions legislation. It certainly does not mean that the convicted perpetrator will spend the rest of their life in prison. In fact, a life sentence can range from 12 years to 20 years. In exceptional cases, it might go beyond 30 years.
If the cabinet secretary does not mind, I will not.
Similarly, an order for lifelong restriction involves the court setting a minimum number of years that the offender must spend in prison, after which they may be released by the Parole Board for Scotland, when risk assessment requirements are met. An OLR does not guarantee that a criminal will never be released from prison.
However, when a judge pronounces that an offender is to receive a life sentence or order for lifelong restriction, the public expectation is, not unreasonably, that the disposal means what it says in relation to the length of time in custody and the perpetrator will be confined to prison for the rest of their life. The fact that that is not the case attracts criticism and cynicism.
Furthermore, the life sentencing policy is intended principally to address the punishment aspect of a prison sentence.
The policy precludes judges from being able to impose a sentence as they see fit to ensure that the public are safe. In practice, that means that the public safety aspect is dealt with by the Parole Board. It is surely perverse and misguided legislation that puts public safety a very poor second to punishment and ensures that, however evil, remorseless, dangerous and depraved an individual is, they will not, other than through ill health or old age, spend the whole of their life in custody.
Quite simply, what we have is bad, complex and confusing sentencing policy, which should be scrapped and replaced by honesty in sentencing that prioritises public safety. To suggest, as Liam McArthur did, that that is about increasing the prison population is intended—perhaps by design—to mislead.
Instead, in the thankfully exceptionally rare cases in which the crime is so depraved and heinous, life should mean life, for the reasons that Liam Kerr comprehensively set out today.
In other disposals, automatic early release should be scrapped. The sentence that is given should be the one that is served, but with the opportunity to earn early release for good behaviour.
The presumption against short-term sentences serves no useful purpose, other than to limit judicial discretion while seeking to empty our prisons without properly funding the community payback order alternatives to custody.
It is only with honesty and transparency in sentencing that the public will have confidence in the disposals that judges make in our courts. The general public will have their confidence in our criminal justice system restored only if the system is sufficiently resourced—a simple truth, ignored by Rona Mackay and Fulton MacGregor—as that is key to ensuring that crucial rehabilitation support is available to all prisoners.