Seòmar agus comataidhean

I will stick to what is relevant to the powers of the Scottish Parliament and what I am here as a member to discuss. We are here to discuss the specific issues of these amendments.

Kate Wallace, who the cabinet secretary quoted earlier, said that the impact of those early releases was far greater than the 348 cases, because victims

“did not know who was going to be released.”

Her organisation and others received what she called a “massive upsurge” in calls from victims who she described as being “petrified”. They struggled to cope with the volume of calls that they received. She was also critical about the lack of information sharing or support for victims, who she described as

“traumatised by the thought of the perpetrators in their cases being released from prison early.”

She added that

“No regard whatsoever was paid to that.”

Understandably, she was clear that

“we do not agree with decreasing the length of time”—[Official Report, Criminal Justice Committee, 23 February 2022; c 11-12.]

that is served. Marsha Scott of Scottish Women’s Aid shared some of those concerns and made a more general point that sheriffs seemed to be getting pushed into alleviating pressures in the system, rather than considering victims’ rights.

I move on to amendments 1051 to 1055. If it is the case that ministers retain the powers to release prisoners, which they have now, amendments 1051 to 1055 would seek to ensure that certain categories of prisoners would be exempt from such release. It is my understanding that the Scottish Government has said that none of the 348 who were released early were convicted of domestic crimes, but the legislation does not exempt such prisoners from any future early release. The other amendments that I mentioned would ensure that other types of prisoner were not able to be released under that power. That includes those who are convicted on indictment, those convicted of crimes of violence, those convicted of sexual crimes and, as already stated, those convicted of domestic crimes.

For all the reasons that have already been laid out, we would rather that ministers did not have those powers full stop, but if they do, it seems sensible and proper that prisoners who are convicted of those crimes should be exempt, and that is what our amendments seek to do. I hope that the cabinet secretary will give that some consideration and, if he does not, I hope that other committee members will vote for the amendments, not least given the strength of the evidence that we have heard from the victims organisations.

I move amendment 1049.

Will the minister accept an intervention?

Has the Scottish Government asked the UK Government for any changes to the bill, or is it content with the wording as it stands?

Yes.

We have had a very fulsome debate. Starting with amendment 1038, I am appreciative of the cabinet secretary’s explanation of why it is—I think that this is the word that he used—defective. On the basis of that explanation, I am minded not to move the amendment at this stage, but I think that the committee and the general public are entitled to know a lot more about what the increase will mean in real terms for victims and perpetrators of crime. Hopefully, the Crown Office might pay heed to the various concerns that have been raised here today and make that information available to us, specifically the nature of the offences that fall under the application of fiscal fines and whether they have been broadened due to the Covid powers that have been in place for a couple of years.

On amendment 1040, it is worth putting on the record that although at points during the debate it sounded like we had some principled opposition to fiscal fines per se, that is not the case—they serve a useful purpose in the justice system. However, it is fundamentally wrong that there is no simple mechanism for or proactive way of telling people who have reported a crime the outcome of those proceedings.

All eight of my amendments in the group relate to the emergency release of prisoners in the event of another Covid outbreak. I will try to deal with them in a sensible order. Amendment 1050 is a stand-alone amendment that would create a requirement that any prisoner who might be subject to early release in future due to a Covid outbreak undergo a Covid test. It came as a surprise to me that that had not been the case, although it was explained that, understandably, the mechanisms were not in place at that time. In any future pandemic, they should be. It seems to defy any public health logic to send people from an institution into communities across Scotland without a test.

With regard to amendments 1049 and 1057, we know that, under emergency measures, 348 prisoners were released early at the start of the pandemic. That decision was made by the Scottish ministers. That figure included 21 prisoners who had been convicted of serious assault. There is a fundamental point of principle at play here. We are opposed to the general ability of ministers to intervene in sentencing. Those sentences were handed out by sheriffs or judges, and sentences should be a matter for the judiciary, not politicians. The early release of prisoners at the stroke of a ministerial pen is wrong in principle.

There is also the issue of reoffending. Their early release was presented as a matter of public health, but I would argue that that was a gamble on public safety. We discovered that 142 of those who were released early under the emergency powers reoffended within six months. The usual yardstick for measuring reoffending is 12 months, so the actual number of those who reoffended was almost certainly higher. The Scottish Government might say that that provision is about protecting people in prison, but these people are in prison for good reason—primarily as punishment, to protect the public and for rehabilitation. I would argue that the Scottish Government ought to fix the prison estate and ensure that the environment is safe and has the capacity to deal with any future outbreaks and therefore not give the possible impression that Covid is being used as a pretext to get prisoner numbers down by stealth.

Just a few weeks ago, the Scottish Government revealed that hundreds of prisoners had been given early or temporary release due to incorrect risk assessments caused by a computer problem. That included eight prisoners serving life sentences, so I suggest that public faith has already taken a bit of a knock. It is also worth stating that the emergency powers are not in the hands of criminal justice professionals—such as prison governors, who have the experience to make the decisions—but Government ministers. If it was governors rather than the Government, it might be a different matter.

The strongest opposition to the powers relates to the impact on victims. The committee took evidence from victims’ organisations, which were scathing about early release. Earlier, the cabinet secretary quoted Kate Wallace of Victim Support Scotland.

I will start with amendment 1050, on the requirement, or otherwise, for prisoners to undergo Covid tests. I heard what the cabinet secretary had to say. Given that the measure is supposed to be about preventing the spread of Covid, it is logical that prisoners could be Covid positive when they are released back into communities. I will therefore move amendment 1050.

I concede that the wording of amendments 1051, 1054 and 1055 as they are framed presents problems. I am grateful to the cabinet secretary for explaining that to me. On that basis, I am inclined not to move those amendments at this stage.

I am grateful to the cabinet secretary for his willingness to at least consider or discuss how amendments 1052 and 1053 might work in practice. I look forward to taking him up on his offer.

Finally, on amendments 1049 and 1057, which are the two main amendments in my name, for all the reasons that I raised in my initial remarks—which I do not think we have time to rehearse—I still believe that the powers envisaged in the bill are not necessary, and I urge members to vote against them.

Yes, and amendment 1057.

That is another side of the coin; it speaks to the same issue, which is that we do not know enough about how fiscal fines are used. For example, we do not know whether some people think that they can, in effect, get away with a crime by refusing a fiscal fine, or whether some people are, for the sake of convenience, accepting wrongdoing that they do not believe that they were ever guilty of.

The point is that, whether we are arguing for more or fewer dates, we have a bill that defines what Jamie Greene has described as arbitrary dates—the minister disagrees with that description—and it seems inevitable from the discussions that we have had that there will be challenges and that the number of days is likely to grow. Whether the use of fireworks on more days happens through a legal expansion of the dates or through the black market, we need to be mindful that it is a likely consequence.