Criminal Justice Committee

Meeting date: Wednesday, February 22, 2023

Official Report 748KB pdf

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Subordinate Legislation

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Parole Board (Scotland) Rules 2022 (SSI 2022/385)

Our next agenda item is oral evidence on a motion to annul a negative Scottish statutory instrument. I refer members to paper 2.

I welcome back to the meeting the Cabinet Secretary for Justice and Veterans, Keith Brown, and his officials, Ms Sandra Wallace, parole policy manager, and Mr Nicholas Duffy, senior principal legal officer, who joins us online.

I invite Jamie Greene to speak to and move his motion.

I thank the committee clerks for scheduling this item in today’s meeting. We have a very busy agenda today, as proceedings have already shown. I also thank the cabinet secretary for attending for what, hitherto, would have been an unnecessary appearance. Nonetheless, it is an important one.

I will be honest in saying that a lot of what I have already said on the issue is a matter of public record and is in the Official Report, so I will not repeat it all. I gave some serious consideration to my motion to annul the SSI that we were presented with prior to the parliamentary recess. It is not a decision that I took lightly—in fact, it is the first time that I have done it in my seven and a half years in the Parliament. However, I felt that, on this issue, it was entirely appropriate and would be beneficial to the committee.

There is very little in the original SSI with regard to Parole Board rules that I disagree with. There are some very sensible changes in the SSI, but there are two reasons why I wanted to bring it back to the committee for debate and I am looking forward to hearing members’ thoughts. First, I believe that it is a missed opportunity by the Government to change Parole Board rules for the benefit of victims of crime in relation to the way in which some practices are managed. Secondly, this is the only method to bring it back—[Interruption.] Should I carry on? The blinds are going up and finally letting some light into the room.

Perhaps we will just pause for a moment.

I know that the cabinet secretary has a panic button under the desk, but I did not realise that it did that.

I will get into the main detail of my motion to annul. I am grateful to the Parole Board for Scotland for writing to the committee with a robust and informative response. I thank John Watt, the chairperson of the Parole Board, for that commentary. If I had not lodged the motion, we would not have received that communication and I believe that that vindicates my decision to bring the matter back to the committee.

I will not go through all the elements of the Parole Board (Scotland) Rules 2022. However, I would like to make the point that because it was presented to us as a negative instrument, the only option available to me was to lodge a motion to annul. There is no opportunity—as there is with other pieces of secondary legislation—to have a proper debate ahead of making that decision, or to amend the instrument in any way. There is no such mechanism available to us. Given that we are looking at such important issues, the Parliament, and the Government, in the way in which it introduces secondary legislation, might want to reflect on that.

We often pass primary legislation with promises that secondary legislation is well scrutinised. However, it is not. The fact that I have to go through this process in order to scrutinise an instrument, take evidence, get more information on it and hear what the cabinet secretary and the directorate have to say is evidence that the current process is not always fit for purpose.

I want to look at a few specific issues that I raised at the previous meeting and reflect on the responses that the Parole Board has given. The first issue relates to what we call Suzanne’s law. I declare an interest: members and the cabinet secretary will be aware that I have completed a consultation on a proposal for a member’s bill. That is relevant to today’s discussion, because much of the content of the Parole Board rules that the Government is seeking to amend through the statutory instrument would have a direct effect on the potential content of my bill and the admissibility of some of its elements. That is why it is important to me that we get to the root of the issues.

I raised the issue of Suzanne’s law, which is in effect a process by which an individual cannot be released from custody or imprisonment if they have failed to disclose where a victim’s remains have been disposed of prior to release. We all know about the tragic incident to which the name of the law relates. As always, our thoughts are with the victim’s family. Like many similar so-called laws, there is a victim of violence or abuse, who is often female.

The historical position of the Scottish Government was that it would be sympathetic to the introduction of some form of Suzanne’s law where that was technically possible. I welcomed that at the time, as did victims organisations. The changes that are made in the SSI that was presented to us seemed to offer a version of that, but it is clear from the response that we received from the Parole Board that that is not the case.

The Parole Board states that it

“may take into account a failure”

to reveal the whereabouts of a victim, and that that will be a factor in its decision making. However, I presume that that is something that the board would have done anyway—or is that a new factor? Therefore, is that a substantive change in the decision-making process?

The Parole Board then refers to the point that it is almost irrelevant anyway, because the primary test of whether someone should be released is set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993, which states that the test is that

“the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

If the answer to that question is that it is no longer necessary, the prisoner is released, and that is the prime consideration. All other factors are certainly part of that decision-making process, but the board makes it clear that

“a failure to disclose the whereabouts of a body can only be considered in the context of that overall assessment of risk”

to the public. Therefore, there is an argument that it would be virtually impossible to implement Suzanne’s law meaningfully in any shape or form under these rules without a substantive change to the 1993 act.

The Parole Board believes that amendment of the 1993 act would be required to bring this policy change into force. Therefore, although it does not form part of this instrument, the question that I would pose to the cabinet secretary is whether the Government is willing to review the 1993 act in respect of that, if such a change could be made and, if the Government is not minded to do so, why not?

The Parole Board also refers to its role in all this. If, in the scenario where a prisoner refuses to reveal the location of a victim, there is an automatic barring of release, that would in some way negate the role of the Parole Board in any decision making, because that would be the primary factor, with everything else coming second. The Parole Board also observes that such a policy may not be compliant with the European convention on human rights and I am sure that that will be used as a defence in relation to such a change.

What I am trying to probe here is what the Government’s current position is, because I do not know. Historically, justice secretaries were a little more forthcoming about this and I hope that the Government will understand why I think that it is an important change. If it becomes apparent that the Government is not willing to or, for legal reasons, is unable to progress such a policy change, naturally, it will remain as part of my forthcoming member’s bill as I go on to the drafting stage. However, if the Government is willing to work with me on any changes, it could easily be removed from that proposition.

One of the changes in the rules that we were asked to look at is around the information that is given to those who sign up to the victim notification scheme. The Parole Board makes what I think is a valid point about making sure that those who have signed up to part 1 of the VNS do not receive certain types of information that they do not necessarily want to receive. Victim support organisations have been quite explicit in their evidence that not all victims want information about what is coming next. However, there are many victims who do, and there are many who feel that they are being let down by the current process. It is important to get that on the record.

I do not necessarily disagree with the board about the change; I understand that wider changes to the VNS are outside the remit of the instrument. However, I would like an update from the Government as to what potential changes to the VNS would make it a much more compassionate, informative and trauma-informed service than it is at the moment, because it is clearly failing many victims of crime.

The other substantive issue that was raised in proceedings and responded to by the board is that of victim observations in parole hearings. In Russell Findlay’s excellent members’ business debate yesterday on victims awareness week, the BBC programme “Parole” was mentioned. It was a fascinating insight into decision making in other parts of the UK, but something that we often hear is that there is a lack of transparency in the parole system here in Scotland.

Certainly, the victims we have spoken to—not only as a committee but individually as members—feel that they are very much excluded from the process and that even when they are able to observe the process, many have had difficulties in doing so. They feel that they are afforded little to no opportunity to have any meaningful participation, and I think that it is important.

10:30  

I understand the Parole Board’s defence that, if we were to confer rights on victims not just to observe but to participate in a parole hearing, that would change the game somewhat. I understand that. The board says:

“As the Board operates as a court, if a victim were allowed to present an oral statement to the tribunal, fairness would dictate that the prisoner ... would be able to cross examine the victim.”

I do not know how legally robust that assertion is, but it is something that I would like to test.

However, there is a wider point, which is that, whether we like it or not, many victims tell us that they do not feel that their needs and views are properly taken account of when decisions of parole hearings are made. That is a valid criticism, which we should be mindful of.

I am not necessarily saying that victims should be able to give oral statements in live proceedings at a parole hearing, which might not be suitable for all victims of crime, but there should be some form of meaningful participation that informs the board’s decision making. That would be a step ahead of the present position, whereby victims are simply allowed to observe. The ability to observe gives victims no rights to participate; they can simply sit there and listen. I think that there is still work to be done there.

The Parole Board raised some minor and technical issues, with which I have no problem whatsoever, and, as I said, there are other parts of the SSI around the risk management plan that I do not have a problem with. Other members have talked about prisoner preparation and other issues that the Parole Board responds to. I understand that the VNS issue is for a wider governmental review and does not necessarily fall within the remit of the Parole Board.

I am not trying to be difficult by raising the issues that I have raised. I put on the record the fact that there is nothing in the rule changes that I disagree with. However, I hope that the debate has given us an opportunity to air some of the issues, which we should have been able to do before having to make a decision on the instrument. I thank members for their forbearance.

Thank you. Could you move your motion?

Would it be possible to let other members contribute before I decide whether to move it?

If you move it now, I will ask you later whether you intend to press or withdraw it.

Okay.

I move,

That the Criminal Justice Committee recommends that the Parole Board (Scotland) Rules 2022 (SSI 2022/385) be annulled.

I invite the cabinet secretary to respond.

Thank you for giving me the chance to make a contribution in support of the Parole Board (Scotland) Rules 2022 and to debate the motion that Jamie Greene has just moved.

I understand that the committee had some concerns—Jamie Greene said this—about the amount of time that it has had to consider the rules. It is important to make it clear that, as SSI 2022/385 was laid in December and will come into force in April, the full 40 days that are required by Parliament for parliamentary consideration to take place have been provided. The issue of whether the committee wanted to consider the matter prior to that is not one that I have a say on.

I am sure that the committee will appreciate the need to provide the new rules and procedures for the Parole Board. The previous rules date from 2001, so they are more than 20 years old. In that time, they have undergone multiple amendments, which has led to them becoming more complex and inaccessible. They are in need of change. Making them as clear and understandable as they can be seems a sensible thing to do.

The new rules bring a new and simplified structure to the Parole Board’s rules and align some common processes. For example, all oral hearings on parole cases will now follow the same procedure. The new rules also introduce procedures to clarify existing practice and improve processes. They aim to provide the Parole Board with effective and transparent procedures that help with the smooth running of Parole Board business.

If we were to annul the rules, as Jamie Greene proposes, that would mean that we would lose all the benefits that they would bring, such as avoiding retraumatising victims. For example, new rule 9(2) allows a victim statement to be withheld from the dossier that is given to the prisoner, if they should wish their views to remain private and the Parole Board considers that it should be treated as non-disclosure. That would be lost if the instrument were to be annulled. The rules will also ensure that victims will be given only the information that they signed up to receive when they registered with the victim notification scheme, which is a point that Mr Greene addressed.

The new rules will improve the process for prisoners by ensuring that they are better prepared for a hearing. They provide for a new procedure to allow the Parole Board to appoint a representative for prisoners if they lack the capacity to appoint one themselves.

It is important to note that the rules have been developed with the Parole Board to ensure that they are workable and fit for purpose. They build on consultation with the public that was carried out last year, and they reflect our engagement with other stakeholders, including, importantly, Victim Support Scotland, the Risk Management Authority and the Law Society of Scotland.

I will cover a couple of Mr Greene’s points. He spoke about the whereabouts of the body of a murder victim not being revealed and asked whether we have any proposals to change the law in that regard. Importantly, criminal law already permits failure to disclose a body to be taken into account when sentencing. It also contains an offence of defeating the ends of justice and that can and has been used in cases in which a murderer has failed to disclose the location of their victim, as it was in the Suzanne Pilley case when sentencing David Gilroy.

The court can take into account all charges when sentencing to ensure that a suitable sentence is imposed to account for all criminal conduct. The role of the Parole Board is to assess when a prisoner, having served the sentence that was handed down by the court, might be released without posing a risk to the community. I think it right that decisions on risk and release are made on a case-by-case basis by the independent Parole Board, which can take into account all relevant information.

Denying parole to someone solely on the grounds of their not revealing the location of a victim’s body might also—Jamie Greene mentioned this—create ECHR issues. For example, a proposal that required a prisoner to be held indefinitely until they provided certain information—if we leave aside the fact that they might not know or remember the information in question—might not be compatible with article 3 ECHR rights, which prohibits inhuman or degrading treatment. Therefore, life sentences require to include safeguards against indefinite detention without possibility of release.

The proposal also appears to be inconsistent with existing safeguards for human rights that form part of sentencing and parole processes. It suggests that prisoners would be detained for longer than the punishment part that the court imposes, with no possibility of parole due to lack of co-operation. That might cause issues of arbitrary detention contrary to article 5 of the ECHR and might interfere with the right to silence, which article 6 protects. Therefore, the proposal touches on fundamental human rights.

To answer Jamie Greene’s question directly, the Government has no plans to change legislation in the way that he has suggested.

Jamie Greene also mentioned his proposed member’s bill. As I have said before, I am more than happy to discuss this and other issues as part of that process.

I covered the issues in relation to victim notification earlier in the statement. However, the Parole Board has indicated that it will prepare guidance for its members on the new rules before they come into force on 1 April 2023, unless, of course, Parliament votes to annul the rules.

For the reasons that I have mentioned, and for a number of other reasons that time prevents me from mentioning, I think it important that the rules are passed. I urge Mr Greene to withdraw his motion to annul. If that does not happen, I urge committee members to oppose the motion.

I am happy to answer any questions that the committee might have.

I will open the floor to questions. I will bring in Katy Clark, to be followed by Russell Findlay.

I will keep my contribution relatively short. I do not have any objection to the rules that the cabinet secretary is proposing. However, I welcome the fact that Jamie Greene has lodged a motion to annul the instrument. As the committee has discussed on previous occasions, many of us feel that this is a missed opportunity. The committee would have liked to have been involved in the discussion at an earlier stage and we felt that we came to the matter quite late, because the process and the procedure are such that we, as the Parliament, are not able to amend the rules.

I do not have any objection to any of the rules that are being put before us. Although I welcome Jamie Greene’s motion, I am not minded to vote for it. It has given us the opportunity to highlight some of the issues. Indeed, as Jamie Greene said, as a result, the committee has been furnished with considerable extra information, which is very useful.

A far wider debate about the role of victims needs to take place. That means a debate not only about their meaningful role in parole hearings—as Jamie Greene suggested—but about the experience that victims have had for generations: they receive a lack of information, feel excluded from the process and find out about issues accidentally and at a later stage than they would wish. Collectively, the Parliament is aware of those issues; yesterday, there was a debate on victims’ rights.

Although I am not minded to vote for Jamie Greene’s motion, the fact that it has been lodged is welcome. As he said, the committee and the Parliament often look at enabling legislation and we are asked to vote for it on trust that the regulations that come thereafter will be acceptable. However, there is not really a proper process for scrutiny of the subordinate legislation that follows.

I do not want to give the impression that I think time has been wasted by this motion having been lodged, because even if there are not significant problems with the specific rules, they represent a missed opportunity, and it is important that the committee puts on record that we want more to be done in relation to the issues that they raise.

I support Jamie Greene’s motion and agree with his comments, and indeed, Katy Clark’s comments about there being a missed opportunity in relation to victim involvement in and contribution to Parole Board hearings, but I have nothing in particular to add to that.

My interest lies in Suzanne’s law, which I have had an interest in for a number of years. I happen to have been a witness in the trial on the murder of Margaret Fleming, whose remains have never been recovered and whose two convicted killers have shown no signs of disclosing where they are. Such situations are appalling for families to live with: killers exercise their on-going power, which causes relentless retraumatisation of families who would desperately like to have closure.

In December of last year, I became aware of a BBC news report—and other news reports—about the Scottish Government apparently bringing in Suzanne’s law. The BBC report said:

“A change to Scotland’s parole rules could mean that killers are denied release if they do not say where, and how, they disposed of victim’s remains.”

I was delighted because that seemed like good news, and it sounded as though what all of the families and campaigners have been calling for was coming to pass. However, when we saw the new rules, it became apparent that their content fell significantly short of the publicity that was generated by them. That is no criticism of the BBC or other media; I think that they were presented with the information in a certain way.

I have been in contact with the family of Arlene Fraser, who was murdered in 1998. Her killer is in custody. Her remains have never been found, and her family understandably supports Suzanne’s law. When I saw the SSI, I pointed out to the family that what was reported about it was not the reality. I received a response back from Arlene’s sister, who said:

“To be honest, I was quite disappointed.”

That was a direct—and quite understated—quote.

It is worth pointing out that when such headlines are generated—perhaps through a Scottish Government press release—it can give false hope to families and further retraumatise them. It might give the impression that Suzanne’s law is coming into being, when in fact it is not.

I thank Jamie Greene for lodging the motion because as a result, John Watt has provided the committee with a very detailed and honest take on the situation. He said that, in essence, for failure to disclose to be “a determinative factor” in consideration of release, a change to the Prisoners and Criminal Proceedings (Scotland) Act 1993 would be required.

I am disappointed to hear the cabinet secretary say that he has no intent of passing Suzanne’s law by revisiting that 1993 legislation, but I look forward to working with Jamie Greene to see whether there is a way to introduce some provision that is ECHR compliant. The issue has arisen in other jurisdictions in the UK; there is Suzanne’s law in Scotland, and there are various other laws elsewhere in the UK, which have all taken the names of female victims, because in almost all these cases, the victims are female.

10:45  

Jamie Greene’s motion has been fantastic in flushing out the truth of the matter, however, I am not minded to vote for it. I am not sure whether he intends to press the motion, but that is obviously up to him. We do not want to throw the baby out with the bath water, but it has been a useful exercise to find out the truth.

I will shortly invite the cabinet secretary to make any further comments as he wishes. However, I will stay with the issue of revealing the whereabouts of a victim’s body. The cabinet secretary specifically referred to some of the circumstances where there are ECHR rights considerations. Would that include a situation where, for example, an individual who has been convicted of a murder is unable to disclose the whereabouts of a body? That could be because of a health condition that that person has, or, as the cabinet secretary mentioned, because they cannot remember: they might remember the broad area, but they cannot be specific about it because of the passage of time. Essentially, including a requirement to reveal the whereabouts of a victim’s body as part of the parole hearing process is akin to having two bites of the cherry, given that the refusal to reveal the whereabouts prior to sentencing would have already been taken into account when the sentence was imposed.

You raise two important points. In my opening statement, I mentioned that it is not possible to be sure that someone genuinely cannot pass on the information disclosing the location of a victim’s body, which I think is one of the reasons why the motion butts up against the ECHR. For me, the more profound point—and it is well for us to explain our rationale for such decisions—is that I believe that the court, when handing down a sentence, is the right place to consider issues such as a wilful refusal to reveal the location of a body. I agree that that information is vitally important for the victim’s family for the reasons that we are familiar with, and I think that it is reprehensible for a person to withhold that. However, the court can take that into account. My view is that we are asking for the Parole Board to take on the functions of sentencing, because it could continue to set the sentence beyond that which the court had handed down; not least the punishment part of it.

As I have said, I am happy to listen to other points of view. If people are unhappy, they can annul the rules or they can introduce legislation to amend the Prisoners and Criminal Proceedings (Scotland) Act 1993. I do not want to be too definitive about it, but it seems to me that that would butt up against the ECHR’s provisions, which is my position and that of the Government. As ever, I try to be open-minded if others have a different point of view.

As a point of clarification, England and Wales do not have Suzanne’s law or its counterpart, as has been suggested: there is no provision that does that. The Parole Board for England and Wales would have to take those matters into account, but it does not have the requirement to do that in a way that has been suggested by those people who are proposing Suzanne’s law.

I cannot be held responsible for BBC stories. There was a story in the media saying that I had misled the Parliament last year, which was completely fallacious. It was reported in all media outlets and there were virtually no corrections. Quite rightly, I cannot govern the media. However, I accept some of the points that have been made about improvements to the victim notification scheme. That is why we are having the review. It is independent, but it can receive representations. I encourage members, in particular Jamie Greene who has an interest, to make representations, which will subsequently be taken into account. I genuinely think that we can do more to improve the victim notification scheme, although we have to be mindful—as we have been in the rules under discussion—not to overstep the mark in such a way that we retraumatise people who do not want to have that information for perfectly understandable reasons. I will leave it there.

Thank you, cabinet secretary. I thank John Watt of the Parole Board for the briefing that he provided to committee members, as it was helpful in informing today’s debate.

I have a small point that is worth putting on the record in relation to legislation elsewhere in the UK. The Prisoners (Disclosure of Information About Victims) Act 2022 was an act in England and Wales and has been put into use in specific cases.

Thank you very much.

Our next agenda item is formal consideration of a motion to annul a negative instrument, the Parole Board (Scotland) Rules 2022. I refer members to paper 2 and invite Jamie Greene to comment on whether he wishes to press or withdraw the motion.

I do not want to stretch this out too long. I thank those members who have contributed and the cabinet secretary and his officials for attending today and offering their point of view.

I want to comment briefly. On the change to rule 11 on matters that the board may consider, the policy note states:

“the Board may, in applicable cases, take into account amongst other matters, any failure to reveal the location of a victim’s body ... this matter may be considered where relevant, but does not change the underlying test for release applied by the Board.”

To me, that still does not make sense. I wonder whether somebody might provide further information—it could be done in writing after today’s meeting. I still cannot see how that could meaningfully be taken into account or be a factor for consideration if there is no change to the overall test. Essentially, if somebody refuses to reveal the location of a victim’s body and it is evident that they are doing so willingly as opposed to through inability, will that make any material difference in the decision making around whether parole is granted? It seems to me that the answer to that question is no, which is why people are disappointed.

I question how meaningful the change is. I park that here because, through that change, we have given some of those victims’ families a false sense of hope. I cannot see any meaningful application of the provision through which the status quo would change.

My views are on the record. Based on the feedback that I have had, including from my colleague, I will not push the matter to a vote.

Motion, by agreement, withdrawn.

I thank the witnesses for attending this morning. We will pause momentarily to allow the cabinet secretary to leave.

10:53 Meeting suspended.  

10:56 On resuming—