Management of Offenders (Scotland) Bill

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s 14th meeting in 2018.

Agenda item 1 is our second evidence session on the Management of Offenders (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. We have two panels of witnesses today. I welcome our first panel, who are Karyn McCluskey, chief executive, Community Justice Scotland; James Blair, policy lead, Community Justice Scotland; and James Maybee, principal officer, criminal justice services, Highland Council. James Maybee is representing Social Work Scotland.

I thank the panellists for their written evidence. Such evidence is always very helpful to the committee in advance of our meetings. I understand that Community Justice Scotland would like to make very brief opening remarks. Does Karyn McCluskey or James Blair wish to do so?

Karyn McCluskey (Community Justice Scotland)

I have taken part in the electronic monitoring review over the past two years. We are very committed to reducing the remand population and providing alternatives for people who are serving sentences in the community on electronic monitoring. I am not sure how deeply I should go.

The Convener

I understood that you wanted to say something in particular. You have one or two minutes to do so, but if you do not want to flag up anything in particular, we have lots of questions.

Karyn McCluskey

Most of what we wanted to say is in our written submission. We are very supportive of electronic monitoring—both global positioning system monitoring and transdermal alcohol monitoring—and of the review of the disclosure of convictions. I am happy to take any questions.

The Convener

That is fine. I will afford the same courtesy to Social Work Scotland. Does Mr Maybee want to say anything before we move to our formal questioning?

James Maybee (Highland Council and Social Work Scotland)

I echo what Karyn McCluskey has said. Social Work Scotland is very committed to the electronic monitoring agenda and to addressing the disclosure issues and Parole Board for Scotland matters that have been brought before the committee.

The Convener

Thank you. We will move straight to questions.

John Finnie (Highlands and Islands) (Green)

Good morning, panel. Thank you for your written evidence, which has been very helpful.

Ms McCluskey, Community Justice Scotland mentioned the 2016 report of the electronic monitoring working group, which argued that the use of electronic monitoring as a stand-alone measure remains legitimate but that it should be available in conjunction with other interventions. Do you agree with that? In what circumstances would you see one or the other being appropriate?

Karyn McCluskey

The bill does not really go far enough, and the opportunity to use electronic monitoring for bail and remand has been missed. I would like the use of electronic monitoring to be extended. There are opportunities to use electronic monitoring on its own where it does not need support, but a great number of the people whom we support in the community need support. It is a bit like wearing a Fitbit on your wrist; you need support with it if you are going to go out and exercise with it. Many of the people whom we are trying to support need to be supported to remain compliant. They need brief motivational interviews and a huge package of support around them. It is not just about technology; the technology works and is 100 per cent accurate. Transdermal alcohol monitoring and GPS are incredibly effective but, on their own, they are only technology. The skills of those in criminal justice work and, indeed, the third sector, which is sometimes neglected, are required to support people to remain compliant and to get them to the end of their sentence.

John Finnie

Would Mr Maybee care to comment on that?

James Maybee

I echo that. The research evidence that the electronic monitoring working group considered clearly shows that electronic monitoring is most successful when support is available alongside it. A key point to make to the committee is that support is crucial, whether that is through criminal justice social work or the third sector. That has to be an integral part of electronic monitoring in the future if we are to maximise its potential success.

John Finnie

The value that is placed on that jumps out of both submissions.

The Scottish Government says that it is committed to making electronic monitoring more person centred and fully integrated with other community justice interventions. Ms McCluskey mentioned bail and remand. Do you believe that the proposals go far enough?

Karyn McCluskey

I would like them to go further. I gave evidence about remand a couple of weeks ago. Our remand population is too high. A percentage of those who are on remand just now might be suitable for electronic monitoring, which would enable them to be compliant and would protect victims, which is also an important part of the issue. It would also enable people to stay in their accommodation and keep them within their family networks, and stop some of the harm that is caused by the inappropriate use of remand.

James Maybee

Social Work Scotland supports electronic monitoring being made available for remand. We know that Scotland’s remand population is very high, and that bail supervision is underused across Scotland. There are pockets where courts are using bail supervision but—I speak from my experience in Highland—it is woefully underused, despite it being continually promoted in courts, with sheriffs and defence agents, and with the Crown Office.

If electronic monitoring was available as part of remand as a bail condition, we might see an increase in the use of bail. It is important to recognise that the majority of cases need to sit alongside support, but if a bail supervision service is provided through criminal justice social work and the third sector, with a tagging element, it is reasonable to assume that courts might have more confidence in using it. That confidence would spread in a ripple effect throughout the public and with victims, which is a crucial consideration.

John Finnie

Your submission says:

“In most cases, in order to support desistance from offending, additional supervision and support would be required which must be adequately resourced.”

For the avoidance of doubt, are you talking about personnel, money or both?

James Maybee

We probably mean both. The financial memorandum attempts to quantify the cost element of the impact of the proposed legislation but, until we get to the actuality of it, it is difficult to know. As the committee will know, at the point of conviction and sentence, a restriction of liberty order can be made alongside a community payback order. It is a good thing that the proposal is that electronic monitoring can become part of a community payback order at the point of sentence as a requirement, because it conflates the tagging element with the support element.

It is reasonable to assume that the number of stand-alone RLOs might drop as a consequence of that, but there is a lot of dubiety around the cost of a community payback order. Two years ago, a lot of work went into establishing the unit costs of a community payback order, but the outcome was inconclusive. We must be mindful of the impact. It is right to quantify and make proposals on costs, but we need to track the actuality of that when the proposed legislation is enacted and we are dealing with that situation in reality. It would be a failed opportunity if we ended up with increased workloads and pressure on social workers while the intent of the legislation falls through the cracks because there is insufficient resourcing.

Daniel Johnson (Edinburgh Southern) (Lab)

If the purpose of the proposed legislation is to avoid people being in prison, your points about bail and remand are well made. What considerations might there be if remand were to be included? Can you see reasons why it has not been included? How straightforward would it be to expand the scope of the proposed legislation to include remand?

Karyn McCluskey

I am not really sure. You would probably have to ask policy colleagues about why that has not been included. There would probably be a cost element—there is little doubt about that. We have a lot of people on remand, which costs a bit of money, although less than incarceration. We would need some justice reinvestment to support the third sector. I am unsure about why the issue has not been included.

Daniel Johnson

Are there any practical provisions that you would want to be in the bill if it was to be expanded to include those categories?

Karyn McCluskey

It is really just that area.

James Maybee

It would certainly be a really good thing to include electronic monitoring for bail. As I understand it, the bill has been drafted to enable future measures to be incorporated without having to jump through too many hoops, but that seems to be a missed opportunity. There were some bail pilots involving electronic monitoring in the mid-2000s, but it is fair to say that the evidence on uptake from those was a little mixed. However, given the focus on reducing the remand population, it would be a missed opportunity not to consider that as part of the bill.

Daniel Johnson

To again follow on from John Finnie’s questions, the written submissions from Community Justice Scotland, the Howard League and others raise a concern about ensuring that the bill is used to get people out of prison rather than to increase the tariff for people who would be at liberty anyway, albeit with restrictions. Will you expand on those concerns and say what safeguards you would like to be in place to prevent the bill from being used in that way?

Karyn McCluskey

With electronic monitoring, there is always the concern that it becomes the panopticon in the community, with everybody under surveillance. GPS gathers a huge amount of data, and we will really need to consider that as we go forward. However, I think that there are enough safeguards in place. My colleagues in criminal justice social work use the level of service/case management inventory, or LS/CMI, tool and the framework for risk assessment management and evaluation, or FRAME, to assess the risk around people going on electronic monitoring rather than being incarcerated. It is a useful way forward for us.

James Maybee

Social Work Scotland is clear that electronic monitoring is not a panacea and is not for everybody. We have to take cognisance of the potential net-widening effects of electronic monitoring, as and when it becomes available in more forms. The key is the risk and needs assessment that goes along with electronic monitoring, whether as part of bail, a community payback order, a prison licence, a sexual offences prevention order or a risk of sexual harm order. It is critical that there is a professional needs and risk assessment as to the suitability of the particular individual for electronic monitoring as part of their sentence.

Daniel Johnson

On that point, I note that Criminal Justice Scotland’s written submission, in answer to question 3, goes into some detail on its concerns about risk assessments and the need for greater clarification in the bill. Will you expand on those points, given that Mr Maybee has raised the issue?

Karyn McCluskey

I am just rifling through my papers.

Daniel Johnson

I apologise if I have made you check your own work.

James Blair (Community Justice Scotland)

It comes down to the court being afforded all the relevant information on which to base an appropriate decision. Our concern is whether enough resource is being attached, so that criminal justice social work can provide the court with all the information to achieve the right outcome for the individual and the court. The issue is simply around resourcing and time, as I think our colleagues have also stated. It is about the section 27 funding and ensuring that local authorities are resourced accordingly so that an individual gets an outcome that is appropriate for them.

Daniel Johnson

Are you saying that the issue is the money that sits behind the process rather than what is in the bill?

James Blair

There are sections of the bill that are confusing. In some places, it says “must” and in others “should”. The policy memorandum refers to different rules, but it is not quite clear. We have asked the Scottish Government to clarify those sections to make the bill clearer. Our concern is that the funding might not be there for criminal justice social work to make the full and frank assessments that are needed for the courts.

Daniel Johnson

That is helpful.

10:15  

Maurice Corry (West Scotland) (Con)

We have talked about the bill and the new forms of monitoring, such as GPS monitoring of a person’s movements, and the monitoring of alcohol and drug use. What opportunities and risks do those represent? Perhaps Ms McCluskey might respond.

Karyn McCluskey

I have a big interest in transdermal alcohol monitoring. I brought some bracelets over about six years ago and have been discussing monitoring ever since, including through writing papers.

In my previous role in violence reduction, 80 per cent of what I dealt with was alcohol related. Scotland is saturated with alcohol. Monitoring is not suitable for those who are addicted, but not everybody is. The behaviour of those who go out on a Thursday or Friday night and get drunk is toxic.

We know that helping such people desist from drinking is a suitable support. Transdermal alcohol bracelets tests the ethanol in the person’s sweat every 30 minutes and electronically transmit the information. When we put the bracelet on someone, we said that they needed to find their sober friends and their sober places and that we would help them not to drink. It is about that support.

Alcohol is everywhere in society. Trying to get people to desist from drinking is a difficult challenge. When people have an alcohol monitoring device on, they use the bracelet to save face. In the face of the well-known pressure to, “Have a drink, have a drink, have a drink,” they can say, “Don’t ask me to have a drink—I am wearing this bracelet.” Probably one of the biggest psychological effects of wearing the alcohol bracelet is that it gives the person the ability to take themselves away from the crowd and change.

There have been over 1 million uses of the bracelet in the United States, including the tests of more than 17,000 people in Dakota on a 24/7 sobriety experiment. We have not used it widely in the United Kingdom, although when it was used in London compliance was 94 per cent. Colleagues who are sheriffs say that every court is an alcohol court in Scotland. The courts also have a lot to do with drugs. We need more tools to address people’s drinking.

Maurice Corry

Do you think that the use of the bracelet will be effective? Obviously, it has had success in London and the US.

Karyn McCluskey

We have not used the device at all in Scotland.

Maurice Corry

Have we trialled it?

Karyn McCluskey

I have trialled it; I have written papers on it.

Maurice Corry

You have not physically trialled it, though.

Karyn McCluskey

No. There would have to be powers in legislation before we could trial it.

It is Hobson’s choice. No one can be forced to wear an alcohol monitor. The person has to consent to it. That provides a teachable moment to address the person’s behaviour. Alcohol monitoring in particular is something that helps address some aberrant, toxic behaviour that contributes to a great deal of our crime.

Maurice Corry

Would Mr Maybee also respond?

James Maybee

I want first to add a comment to Mr Blair’s response to Mr Johnson’s question.

It is not just about money, although money is great and we would always want more so that we could do more. On the information and evidence that criminal justice social work receives to inform our risk and needs assessment and the level of service/case management inventory tool, what is sorely lacking is the summaries of evidence that are narrated in court. More often than not, the social worker is entirely reliant on the information that the offender provides for the criminal justice social work report.

This has been a bone of contention for a long time and has been raised on numerous occasions in every conceivable forum. It is a critical part of enabling the social worker to provide a much more evidence-based and objective report on risk and need. Without it, we are entirely reliant on the offender’s version of events. There may be important information missing from that, particularly in relation to victims. We get such information on sex offenders and that is helpful and informative. My plea is for that to be considered for other offenders.

I appreciate that there are practical issues relating to how those summaries are often narrated in court—they are not written down, which creates a problem. I am sure, however, that there is a way to get over that hurdle. It would significantly improve the strength and quality of risk and needs assessments if we were to have that information routinely on every occasion.

I want to say a few things on the issues around alcohol. In our submission, we noted that how people change their behaviour is not a linear process; people go through a cycle of change, sometimes several times. Relapse is not always the case but, more often than not, it is part of the cycle. I am sure that we can all think of examples from dieting or trying to stop smoking of how often people go back to their previous behaviour and start the cycle again. With alcohol monitoring, there is a risk that things can be seen too much in black and white. If we are going to have legislation on that—which I support—we will have to have the right guidance so that there is a recognition that there is a high likelihood that someone who is required not to use alcohol will breach that requirement at some point, and that, therefore, on-going management of that individual will have to be part of the sentence. That is a critically important point to make. Parole licence conditions often say that someone must not drink, but that creates a problem in cases in which there is a dependency, because it is asking something that is just not possible. We have to be mindful of that when we are creating the legislation and the landscape around remote alcohol monitoring.

We must also not forget the post-sentence issue—this applies to all electronic monitoring and, indeed, potentially all sentencing options. Research suggests that, when somebody gets to the end of the period of statutory supervision, there is often a question of how they can sustain the level that they have reached. If somebody has made good progress through their CPO or their prison licence, how can that progress be sustained beyond that period of statutory supervision? We have to give considerable thought to that. The solution might involve the third sector or further resources. However, if we are looking at this as a medium to long-term issue, we have to build that in. People will only be on CPOs for a maximum of three years. Most people on licences will not be on those licences for ever. What happens after that? Social work will obviously try to link people into community-based resources, but those resources need to be there in order to make that work.

Maurice Corry

Have you talked to the Drinkaware Trust, which is the alcohol education body of the drinks industry?

Karyn McCluskey

I work quite a lot with Alcohol Focus Scotland, and I am quite engaged in lots of the alcohol groups. However, I have not talked to Drinkaware.

Maurice Corry

Drinkaware has ways of getting out the message about responsible drinking, and I was wondering whether the issue had been discussed with it.

Karyn McCluskey

When we initially considered this issue six years ago, lots of sheriffs were including a requirement that someone not drink as part of their sentence. At the time, the only way of monitoring that was through a breathalyser test. However, it is possible to drink around such a test, because you lose about one unit of alcohol per hour.

We pay attention to someone’s course of conduct; that is, we see whether their offending behaviour includes two or more offences in which alcohol has been a factor—not a unique correlating cause, but a factor—and use that as the criterion for introducing alcohol monitoring. That means that the first time that someone is caught after having committed a drink-related crime, they do not go on to the monitoring system.

There is a gathering body of evidence about supporting people. Mr Maybee is absolutely right to say that we need to be extremely thoughtful around this issue. Even when we were doing some of the studies and we saw that someone had had one drink, we would call them up and ask whether they were finding things difficult and we would conduct brief motivational interviews around alcohol. At the end of the day, we want to keep people compliant, but we recognise how difficult that is. There is a motivational aspect to the process, and failure is absolutely part of it. The Prochaska and DiClemente motivational change model says that we should expect people to fail, and that we should use those failures as teachable times when we can intervene again.

James Blair

It is about being smarter with our justice and using an evidence base so that an individual is supported with their addictions. With regard to alternative forms of sentencing, the issues will still be there when an individual is released from a custodial sentence. It is therefore about society supporting an individual through a process in order to have better outcomes and about being smarter in the way that we look at that. We are convinced that there is an evidence base to take that forward.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning, panel. I am interested to know how electronic monitoring affects the families of people being monitored. Does more need to be done to mitigate any difficulties with that?

Karyn McCluskey

I certainly think that home detention curfew is a big ask for lots of families. Having someone in the house from seven until seven might be quite difficult for families. We know that families can support people to comply with their order, but it takes a great toll on them. The extension of electronic monitoring with the use of GPS allows us to be more flexible and a lot smarter about how we induce compliance in people with regard to staying away from certain areas and places such as the houses of victims or witnesses. Using GPS is therefore probably slightly less onerous than some of the HDCs and RLOs.

Rona Mackay

How often is GPS used?

Karyn McCluskey

It is not used just now. It is not part of the legislation. However, it is incredibly interesting, as we can see if we look at some of the work that has been done in Germany, where they have some quite complex exclusion zones. The GPS device buzzes if people get too close to them, which tells them to move away. A GPS device can therefore be used cleverly and is individualised, so it is not just a blanket ban—the device can be individualised for each person.

James Maybee

The impact of electronic monitoring is certainly an issue for families, for obvious reasons. For example, there might be underlying tension between the partners in a household. Clearly, if somebody is confined, such tension can be exacerbated and the electronic monitoring might have unintended consequences. The research on the impact of electronic monitoring on families is fairly limited, so it would benefit from further study.

Interestingly, the default conclusion drawn is that using GPS is more intrusive, but there is some evidence to suggest that it can be less intrusive because somebody is not confined to a particular place and can go about their lawful business, provided that they do not go into the exclusion zone that has been set up. The fact is that they are not confined to one place.

However, using electronic monitoring requires having a thorough, strong assessment that takes into account the situation in the household and ensures that the individuals in it are spoken to. It is about making sure that that fuller assessment is carried out.

Rona Mackay

What feedback do you have from families? Do you find that they are generally supportive of EM?

James Maybee

It is difficult to comment on that, because I am not sure that I have an evidence base from which to do so. I suspect that the position is mixed and that electronic monitoring will work successfully in some places but that difficulties might arise in other circumstances. It goes back to the on-going supervisory element and contact with not just the offender but the family to ensure that if there are issues, they are picked up immediately and considered, and any necessary action is taken to head off potential difficulties.

Rona Mackay

Do the children in the household get any kind of counselling or explanation about what is going on if one of the adults in the house is under a curfew? Do children generally understand that?

James Maybee

It is important that every member of the household is aware of what is happening, because children are very observant and will see that a box has been put in and that their father or mother is wearing an ankle bracelet, which will provoke the obvious questions. Making children aware of what is happening has to be an integral part of planning for electronic monitoring so that there are no surprises or shocks and that, depending on the age and stage of individual children, they have sufficient answers and information.

Rona Mackay

Who would that come from?

James Maybee

That would be done by the electronic monitoring provider, which is currently G4S. Its staff are the people who go into the house and fit the box. Where there is a supervisory element, I would expect the criminal justice social worker to be part of the discussion.

10:30  

James Blair

To reiterate, we are supportive of Families Outside and what it said in its submission. I am sure its representatives will have more to say later.

On the G4S technology, we have come on a long way, but we live in Scotland, and the geography and topography mean that it is not always accurate. The technology is moving on, but there are parts of Scotland where there is no GPS coverage. That applies to inner cities, too. At the point of assessment of what is available, we need to consider whether GPS is appropriate, now and in the future. There are some concerns about that.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Good morning, panel. I have a supplementary question to Rona Mackay’s question about GPS. There are obviously limitations to the system. As Scottish Women’s Aid has pointed out to us,

“GPS does not detect contacts attempted via ... telephone ... social media, text messages, or ‘chance’ encounters”.

It will not catch certain types of behaviours. Scottish Women’s Aid also highlighted research from America, which said that using GPS monitoring pre-trial made victims feel

“anxious”

as a result of

“seeing the abuser moving freely about”.

Are there limitations for the use of GPS monitoring regarding certain types of crimes, such as domestic abuse?

Karyn McCluskey

That will come down to a social work assessment. James Blair is probably better placed to comment on this. The anxiety of victims should never be ignored. Things can be very difficult for any victim, whether of violence or otherwise, and whether it is a man or a woman, and it is a matter for risk assessment to pick out when it is proportionate to use monitoring for the victims and whether it is suitable for the person to be monitored. There are considerations with it, as there already are for RLOs and HDC.

James Maybee

The voice of the victim and the issues surrounding the protection of vulnerable people and victims are key—they are paramount. They have to be part of any thorough risk assessment. No order or licence is a magic bullet. Nothing will ever work perfectly, and there will always be instances where things do not work, which can be for a multitude of reasons. It comes back to the risk assessment. To pick up on an earlier point, it is also about having as much information as possible in order to formulate that assessment.

The point about geography and the limits of the technology has been well made by my colleague from Community Justice Scotland. That is a fact of life. However, I do not see that as a reason not to move forward. It is not unique that a certain programme is not available throughout Scotland. For example, the Caledonian system is not currently available to all criminal justice social work services, but it is a start, and money has been made available to roll it out further.

A further point is that the current contract for the delivery of electronic monitoring is up for renewal. I think that the contract expires in 2020.

Another key point is that the links between the provider of the electronic monitoring service, whoever that is—it is currently G4S—and criminal justice social work must be excellent. There has to be a synergy and a working together to achieve a shared goal or a shared aim, with a real understanding of what the different partners bring to the table by way of support, technology and the crossover. Criminal justice social work should understand the limitations of the technology and what will work and will not work in the landscape, especially in the island authority areas or in other remote rural communities such as those in Highland, where monitoring will be problematic. There has to be really good consistency and a joining together.

In my experience, G4S provides an excellent service, and I can confidently say that that is a reflection of Social Work Scotland’s view. I hope that that continues beyond the life of the contract, regardless of whatever comes next. We have to get it right in the future. If we do not, we risk undermining what we are trying to achieve with electronic monitoring.

James Blair

I want to reiterate those sections from our submission in which we call for the guidance to be co-produced. The rights of both those who have offended and the victims have to be respected. The issue is problematic and contentious. We need to get around the table, so that we get the right balance and everyone feels that they have a part in the process. That can be done only in a co-productive environment, and we have asked the Scottish Government to do that.

Liam McArthur (Orkney Islands) (LD)

James Maybee mentioned GPS coverage and some of the communities where monitoring might be impractical. Those also happen to be the communities where incarceration is likely to be in a place that is much further away from the family and home network. Is it your expectation that the future contract, as a priority, will address any gaps in coverage, so that monitoring can be applied, where appropriate, across the country rather than piecemeal? Do you also expect that the future mapping exercise will be a good deal more reliable than the mapping exercise for mobile phone or broadband coverage, in which the operators give some comfort about the extent of coverage, but where the lived experience on the ground is a far cry from that? How will that work?

James Maybee

The answer is that those things must be an integral part of the future. We have to create a culture of honesty about what works, what does not work, where the gaps are and what the plans are to plug those gaps. I know from driving down here this morning that there are pockets of poor coverage where you would almost least expect it: the DAB radio suddenly cuts out and you are in a black spot, although not necessarily in a tunnel.

Those aspects must be part of future considerations; we must have clear and honest statements about coverage, so that we make decisions that are based on clear evidence.

Karyn McCluskey

Radio frequency monitoring will still be available; we will still be able to use it. We will probably have to wait to use GPS. I expect that, in five years, the scenario will look entirely different. We certainly do not want to disadvantage people from rural communities. We would like to keep people with their family, in their own house, in their own community and in a supportive environment where criminal justice social work and the third sector can support them. We should not have a two-tier system.

Liam Kerr (North East Scotland) (Con)

I will come at the issue from a slightly different angle. People in some communities might look on any increase in electronic monitoring with concern. Someone behind bars is not able to recommit crime within the community. Karyn McCluskey said that she wants to keep people in their community. The community may not want those people in their community. Do the proposals offer any additional or, indeed, sufficient protection for victims and the community more generally?

Karyn McCluskey

There is an evidence base of compliance with GPS and, indeed, transdermal alcohol monitoring. You are right: we need to educate the community about what GPS and electronic monitoring can do in the widest sense, alongside support. People have community sentences now. We have more to do, and you are absolutely right that understanding needs to improve.

I would hope that the use of EM would induce compliance. The evidence shows that someone who is electronically monitored and provided with the right support becomes increasingly compliant. In some voluntary programmes, people wanted to keep the device on after the programme finished, because it helped them to desist from crime.

We have a difficult situation, given the level of remand and short-term sentences. We know that 98 per cent of women get a sentence of fewer than 12 months. Surely it is better for us to look at different ways to keep people compliant in the community and to support them to not reoffend.

Liam Kerr

I do not necessarily dispute that—particularly in relation to remand, which we have looked at in some depth.

In answer to my question, you spoke about educating the community, inducing compliance and helping people to desist from crime. However, my concern is that members of the community may say that they have been terrorised by an individual whom they do not want to have back and that they want the criminal justice system to keep that person away from them. How do you respond to that?

Karyn McCluskey

This is not binary. Not everybody who has been given a sentence of under 12 months will automatically go into the community. There will be some offenders for whom it will be decided that, for the protection of the public, they will have to be on remand or on a short-term sentence. However, there will be a percentage of people who are in our custodial environment just now who would be much better suited to a community sentence and would be much better supported by the use of electronic monitoring. That is particularly true of women, who will not be well served by spending two months in prison, only to come out to homelessness and a whole range of other challenges. There must be a better way to do this. We will absolutely have to support them differently.

Liam Kerr

To come at the situation from the community’s point of view, are there sufficient protections in the proposals?

Karyn McCluskey

We need a complete paradigm shift. We need much more support in the community and to invest more in our third sector, because it can support people in a way that is very different from the way that I or criminal justice social work can. There is little doubt that it will need some justice reinvestment.

James Blair

The key word here is “supportive”. The technology could be used in a smarter way, so as to be supportive for communities. An exclusion zone would support the communities involved and would also give confidence to victims that if the person with the conviction were to go into such an area, the police or whoever would come and deal with the situation at that point.

Karyn McCluskey

The response needs to be swift and visible. Non-compliance needs to be dealt with robustly, otherwise it will just increase. One of the recommendations in the electronic monitoring report was that we needed to look at how we address compliance robustly. At the moment, about 30 per cent of sheriffs will put a very robust programme in place and will ask criminal justice social work about every small breach; with others, that is less the case. As we go forward, in order to give the public confidence that we are dealing with people appropriately and that we will protect them, we will need to set up a very robust programme to manage people in the community.

The Convener

We move on to non-compliance, on which Mairi Gougeon has questions.

Mairi Gougeon (Angus North and Mearns) (SNP)

I have a few questions that are based on Community Justice Scotland’s submission. I noticed that quite similar threads ran through that submission and a few of the other submissions that the committee has received. One thread was about the language that is used in the bill, and about the use of the term “offender”. I would like to hear a bit more about that from James Blair, and about whether the witnesses think that the language in the bill should be changed.

James Blair

In our response, we said that we thought that the language and terminology in the bill, and perhaps the title of the bill, should change. In the run-up to the passage of the Community Justice (Scotland) Act 2016, the Parliament had quite a discussion about how we talk about convictions, those who have offended and those who have convictions. The point is important because there is an anxiety around convictions, so the approach should be about getting the language right so that, when an individual has been reintegrated back into society, they feel part of it.

There are whole parts of the Management of Offenders (Scotland) Bill and the policy memorandum in which the language and the terminology do not meet the standard that the Parliament set in 2016, which is of concern to us. We are guardians of the national Community Justice Scotland strategy, so we adopt that language, and all services, including the police, use it when we refer to those who have convictions or offending behaviours. The use of language and terminology in the bill is therefore disappointing. We have had discussions with the Scottish Government about why that has happened. There has been a bit of hesitation, because the bill refers back to the Rehabilitation of Offenders Act 1974, which is an act of the Westminster Parliament. The terminology there is from 1974, and this Parliament has said that it was not appropriate. We have asked the Scottish Government to reconsider the use of the language in the bill. The policy memorandum asks whether something supports individuals in moving on—which is the terminology that the Scottish Government uses—but I would say that the language, terminology and title of the bill are not appropriate.

10:45  

The Convener

Can you give examples of language that is not appropriate and language that would be appropriate?

James Blair

The use of the terms “offender” and “ex-offender” is not helpful. We should talk about people who have had convictions and people with offending behaviour, as that empowers people rather than demeaning them, which is quite important. In our view, calling somebody who has a spent conviction an ex-offender, even though they have been through rehabilitation, is not supportive. From the discussions that were had in committee and in the chamber in 2016, I do not think that such an approach is supportive of the direction that the Parliament wanted to take.

I think that the 1974 act is the culprit here. The question is how appropriate it is to replicate the language that was used in the 1974 act in the bill or the policy memorandum. Confusion will be created for those who are involved in sentencing, the police and people in statutory services or the third sector about what to call individuals. It is confusing that we seem to be moving back from the idea that we had in 2016, and we are not happy with that.

The title of the bill is confusing, because it is about electronic monitoring, changing the disclosure periods and reforming the Parole Board for Scotland. We do not think that it is about the management of offenders, because somebody who has a spent conviction is no longer an offender. We feel that the title of the bill is misleading and unhelpful, and some of the language that is used is possibly pejorative.

The Convener

What kind of language would you prefer?

James Blair

We would prefer the bill to talk about those who have had convictions and those who have had offending behaviour. That is important. It is a question of getting the terminology right and not going back to the 1974 act, which is not appropriate and does not reflect what we do in Scotland.

Mairi Gougeon

I have a follow-up question, although it might be more appropriate to ask it of the people who drafted the bill. Is there anything that says that the bill must relate back to the 1974 act, which means that it is necessary to use such language? Do you get the impression that that is open to change? Is there any flexibility in that respect?

James Blair

I think that you would have to ask the bill team. We have asked the question. The 1974 act is reserved, so there are certain sections that cannot be changed without approaching Westminster.

Mairi Gougeon

Thank you very much.

In its submission, Community Justice Scotland says:

“There are inconsistencies and ambiguities between the stated intent in the Policy Memorandum and the Bill regarding written reports by Criminal Justice Social Work”.

It goes on to say:

“a written report ‘must’ be placed before the court whereas this is not explicitly referenced in the Bill”.

Could you tell us a bit more about those concerns?

James Blair

We are concerned about the use of the word “should” in a bill or a policy memorandum without that being well defined. We want to make sure that the intent of the relevant section is clearly defined by the Scottish Government. Different forms of drafting seem to have been used. The use of the word “should” or “must” in the policy memorandum needs to be replicated or defined in the bill, and we do not feel that that is the case.

Mairi Gougeon

I have a final question that is based on the submission that we received from Scottish Women’s Aid and which relates to the 2015 evaluation of the presumption against short sentences. The organisation was concerned about the fact that further offences by an offender on a CPO do not constitute a breach of the order and that responses to breaches of CPOs “were poor and inconsistent”. Is that your experience? Do you agree with that?

James Maybee

You are correct to say that, if somebody commits an offence while they are on a community payback order, that does not constitute a breach of the order. One can agree or disagree with that, but that is what the current legislation says.

With regard to how breach is dealt with, it has already been mentioned that breach of any order or licence must be dealt with clearly and strongly. There must be consequences.

It is, however, the job of the criminal justice social worker to look at the evidence. Somebody might be well into their order or licence, and there might be good evidence that they are generally making good progress, but then they might go through a difficult period. The reasons for that and why it has happened need to be assessed—for example, does it raise the individual’s risk or the risk to potential victims? The decision can then be made and action can be taken accordingly.

When somebody has clearly and significantly breached their order, and there is a real increase in risk, the social worker can go to breach immediately and take the case back to court. That is not instant because it does not come with a power of arrest. In my own local authority—I am sure that this also happens in other local authorities—when you have concerns about an individual, you will have that discussion with the court and tell it that there are real issues with Ms X or whoever, and that you are going to submit a breach and ask the court to deal with it quickly. That can mean that the case is called the next day or as quickly as the court can manage within its timetable. There is a way to shorten the period. A normal breach can take some weeks to get before the court, which would not necessarily help to protect communities and victims.

The Convener

Liam Kerr started by asking about non-compliance. Have those points been answered?

Liam Kerr

Absolutely, but Mr Maybee was also going to say something in response.

James Maybee

Mr Blair has been clear about language, and I support much of what he said.

Language has to be understandable to the public. There is an issue in Scotland with people’s understanding of what a community payback order means, or of the variety of prison licences, extended sentences, supervised release orders and so on. Things are sometimes not couched in plain language, and the lack of clarity and understanding creates a sense of unknowing and leads to some communities not having faith. It almost leads to the default position being that people understand when somebody is in prison and think that they cannot do any harm to anybody because they are in prison.

It is important that all agencies—be that the Scottish Prison Service, my own service or Community Justice Scotland—do what we can to explain better to the public what we do. If we improve the common understanding of how we manage people who have offended, or whatever the term is, we have a greater prospect of increasing people’s confidence in what we are trying to do. They will understand why we think that it is better to manage somebody in the community who would otherwise have received a short-term prison sentence during which—let us be honest—nothing would have happened with that individual. They would have gone into prison for two, three or four months, but because the Scottish Prison Service does not have the resources to do much with that person, they would have come out without necessarily being subject to any supervision, and the opportunity would have been lost.

If we are not clear about what we are doing and how we are trying to do it, and there is no common understanding, there is a risk that we do not do as well as we could some of things that we wish to achieve.

Jenny Gilruth

I am sure that I heard you say earlier that this is not just about the money, so I would like to go back to the point about resources. Your submission talks about CPOs being one of the most commonly used community sentences in Scotland, with more than 19,000 being issued in Scotland in 2016-17. You say:

“An increase in the use of EM would involve justice social workers carrying out more suitability assessments and supervising more monitored people ... In this event adequate funding would have to be provided.”

What specific additional resources are required?

James Maybee

Under the current legislation, if the court makes a stand-alone RLO, it is not required to get a criminal justice social work report. In actuality, most courts ask for such a report because they want a wider assessment. We might therefore see an increase in requests for reports, because if somebody is going to get a CPO and EM has been considered as a requirement for that, a criminal justice social work report would need to be done. The evidence that has been put forward is based on the average length of a CPO being 15 and a half months, I think. Again, that is an assumption that may or may not be proved to be correct. There may be longer CPOs where there is an electronic monitoring requirement.

GPS is a bit of a step into the unknown. GPS can be either active or passive. With active GPS, where somebody is being monitored in real time, information is constantly fed back to the electronic monitoring provider, and we would expect a much greater need for liaison and communication between the EM provider and criminal justice social workers. That could be quite resource intensive—that needs to be considered and not forgotten. Passive GPS is perhaps less risky because, obviously, the data is aggregated over a particular period of time and then considered.

There are a number of unknowns. I think that the word “possibly” is used in our submission. Although we think that there has been a reasonable first go at quantifying the costs, we have to remain cautious: we need to get it right and monitor the impact of whatever is in the legislation that is enacted. There may be an opportunity to do that through demonstration projects before it is spread across the country. It would be regrettable if criminal justice social work was not sufficiently resourced to deliver electronic monitoring in the way that we are discussing, because there is a huge opportunity.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning, panel. I will move on to disclosure of convictions. In Karyn McCluskey’s previous role in the violence reduction unit with John Carnochan, she spoke powerfully and passionately about people being able to move on once their convictions are spent. What impact do convictions have on people who are seeking to move away from previous offending? The bill seeks to make changes to the rules on when convictions become spent, reducing the length of time in some cases, and to extend the length of some custodial sentences. Do the proposals strike an appropriate balance, or is more consideration of the matter needed?

Karyn McCluskey

The current legislation is most confusing. With regard to people who have convictions understanding when they should and should not disclose, my experience is that people just end up disclosing everything, so the approach is keeping them in structural inequality. The majority of the people whom James Blair and I work with have children and families, and they need the opportunity to take part in the wealth creation of Scotland and get into employment. I know that if I get somebody—male or female—into employment, they will reoffend less and be able to earn square money for their families and support them. Currently, that is not happening. Lots of companies have a blanket policy. I can understand why: they get lots of applications, and they just sift people out. Therefore, things need to be changed.

The approach in the bill is much clearer, and I welcome it. It will absolutely reduce the terms. Many people with convictions whom I have spoken to are excited because when they should and should not have to disclose their convictions will be clearer. We cannot disaggregate some of the people who are in structural inequality, in respect of disclosure of their convictions. They might be a long way from their offending behaviour, which may have been 10 years ago, but they still have to disclose it—when they go to university, for example—which seems to be particularly unfair.

Ben Macpherson

I agree. Do you think that the bill is a step forward? Are there other points about it that you would like to raise?

Karyn McCluskey

The bill is definitely a step forward. It will be interesting to see how its provisions are communicated to the people who are trying to navigate their way through it. It took me a number of reads and use of the policy memorandum to understand lots of it. We will have to address how we will communicate its provisions to people who have convictions from a long time ago, how they will understand what and when they have to disclose and who will have the right to ask.

11:00  

James Blair

The changes in the disclosure periods are the start of a process, but the bill does not cover how we make the change. There is a process available via Disclosure Scotland and summary application to a sheriff, but it requires resources that people who have had convictions cannot afford. We are talking about thousands of pounds for the legal support to do that. Why would someone go through that process when they have to find the resources to do it and, at the end, the sheriff could still turn down the application?

As Karyn McCluskey said, we support the timeframes that are being spoken about. The issue is about informing the public, employers and people in education what it means for a person to have a conviction on their disclosure statement and how they can have it removed. We need to work on anxiety about convictions with everyone in society. As far as I can see, that anxiety still exists and there is confusion. I do not believe that the bill will make things clearer for people who are involved in looking at convictions.

James Maybee

It is a massive step forward. It is incredibly confusing—

Ben Macpherson

I am sorry to interrupt. Do you mean that the situation is incredibly confusing as things are?

James Maybee

Yes. The current situation is confusing. The bill is taking us in the right direction. We have talked about language this morning. It is important to run the measures past people who have convictions and who are going to apply for jobs, as well as employers, in order to see whether they understand what is being proposed. If we do not do that, we run the risk of improving things for ourselves but not for the people who must deal with the issue at the coalface—those who are applying for jobs and thinking about whether to disclose, what to say and how to say it, and employers. We need to apply that test in order to get the language right so that we maximise the potential for people to understand what we are trying to achieve.

Liam McArthur

James Maybee talked about a step in the right direction and removal of some of the current lack of clarity. What can we do in scrutinising and amending the bill to take us further, and to provide additional clarity for those who are caught by the provisions and for employers, who will need as much understanding as possible of the impact of how they act?

James Blair

My understanding is that some such areas are reserved, so it might not be appropriate for the Scottish Government to implement measures relating to employment. I understand that, with other bills that have gone through the Scottish Parliament that involved reserved matters and which, at the end of the process, have supported people, guidance was worked on to highlight issues so that the process was clear.

The current disclosure process is not supportive. Later this morning, colleagues will give evidence to the committee on that issue. To be frank, the problem is the Rehabilitation of Offenders Act 1974, which has been changed quite a few times. I am not sure how supportive it is of individuals or how easy it is to understand. We call on the Scottish Government to co-produce guidance so that in the implementation stages individuals, employers, people in education and bodies that provide services—volunteering is also involved—have a clear understanding of the process. They need to know what it means when someone has a conviction listed on their disclosure statement and it says that they can work with anybody. Given the anxiety around the issue, an employer might see that as too much. We need to work through co-production but, unfortunately, I am not sure that the bill is the right place to do that. The problem is with the 1974 act.

Liam McArthur

Earlier, Karyn McCluskey said that it took her some time wading through the documentation on the bill to understand the implications precisely. She is familiar with such documents, so that is a concern. Is the way in which the provisions on disclosure are phrased within the bill and supporting documentation as clear as it might be?

Karyn McCluskey

From speaking to my English colleagues, and to colleagues in Scotland in Recruit with Conviction and Positive Prison? Positive Futures—I am sure that they will speak on this later—I know that the questions that are asked most are, “When do I have to disclose?”, “Who do I have to disclose to?” and “Can people ask me about convictions?”.

The documents that Community Justice Scotland puts out will try to make sense of something that is very complex, especially for people who have more than one conviction or mixed convictions. That is where the confusion will lie—certainly, for employers, who do not know how to work their way through this. The situation must be made much simpler for employers, or we risk excluding lots of people in vulnerable populations from work environments. That does not seem to be progressive.

Liam McArthur

Does James Maybee want to add anything?

James Maybee

The sentiments have been well expressed. In the Highland Council area, we have a contract with Apex Scotland, which runs a course on the Rehabilitation of Offenders Act 1974 because the act is complicated. The course covers not only the technical aspects of what and when an individual must disclose, but how to deal with questions that a potential employer might raise. If the 1974 act had been successful, we would not have to run the course because people would pick the legislation up and understand it. Social Work Scotland thinks that we have made a giant leap forward with what is in the bill, but I am sure that there is room to improve things in the future.

Liam McArthur

I turn briefly to the issue that the length of time for disclosure is determined by whether the conviction happened before or after the age of 18. I am not going to ask whether you think that that is right. Do you, however, think that 18 is the correct threshold to set in making the distinction?

Karyn McCluskey

That is a very difficult question. The approach is a pragmatic one for now, but it might be revisited in the future. We should not be holding some of our young people back because of circumstances that happened when they were under 18. I deal with many young people whose lives have been blighted. It is a good place to start, but we should reconsider the threshold later.

Offending and victimisation are often fleeting rather than consistent states. We have some prolific offenders, which is why we need custodial environments and to deal with them differently. We should, however, allow people to move on, particularly those who are young and have decades left to contribute to society.

Liam McArthur

Will the bill allow such a change to be made in due course, if doing so is thought to be appropriate?

Karyn McCluskey

I am sure that the provision could be amended later. It is a pragmatic approach now to set the threshold at 18. The matter has been consulted on, but I have not seen all the responses yet.

The Convener

Would you recommend a change of policy in respect of people under 18 who had committed predatory behaviour or sexual offences?

Karyn McCluskey

I am not sure of this, but I think that such cases would be dealt with differently.

The Convener

Do you mean any such case? [Interruption.]

Karyn McCluskey

I am not prevaricating, but I am not sure. I think that such cases would be dealt with differently.

The Convener

We will seek clarification on that point, because that type of behaviour is likely to continue.

James Blair

There are two schedules for convictions: for offences of a higher nature and for those of a lesser nature. The provision is not about convictions for higher offences.

The Convener

Offences such as those that I mentioned would not, therefore, be covered, so that would not be a problem.

James Blair

It would not, as I see matters.

Liam Kerr

Liam McArthur asked about the length of time for disclosure. It seems to me that an appropriate period cannot be set unless it is clear what disclosure is intended to achieve. I will therefore ask a basic question. There must be a purpose to disclosure: what do you understand that purpose to be?

Karyn McCluskey

There are certain jobs for which people will always have to disclose previous convictions—for example, jobs that involve working with children and vulnerable groups.

Liam Kerr

Yes—but is the base-level disclosure a warning to employers, for example, that a person has had a conviction in the past and therefore has a propensity to reoffend?

Karyn McCluskey

It is not clear that a person who has offended in the past has a propensity to reoffend, particularly when they are far from the offence.

Liam Kerr

That is what I am asking about.

Karyn McCluskey

There is a huge evidence base. Beth Weaver, for example, has just done a big survey of all the relevant literature. When a person has not offended for 10 years, for example, the likelihood of their offending is no greater than the likelihood of me offending. There is a good deal of evidence that shows that people who offended a long time ago are not so likely to reoffend.

Your question about the purpose of disclosure is a really good one. We have set out that it will sometimes be about the individual—although I know that that does not answer the question very well. Can I have some time to think about it?

Liam Kerr

Yes. I will think about it, too, because I think that the question why we have disclosure at all is fascinating.

Karyn McCluskey

The question why we think that a person should tell an employer about something that they did a very long time ago is very good.

The Convener

There is the opportunity for you to provide that information later.

Karyn McCluskey

Good.

James Blair

The basis of the 1974 act was that people were not actively disclosing and there was confusion. Disclosure was originally partly about public protection. I cannot see that the bill has an answer to the question about the reason for disclosure. The bill is just about time periods; it is not about reasons for disclosure.

Liam Kerr

Can we muse on that question and come back to it?

Karyn McCluskey

Yes, we can. It is a great question.

Liam Kerr

I am genuinely interested in the matter.

James Maybee

I am not sure that I can provide greater clarity than my colleagues, on that question. However, I suppose that the obvious comment to make is that disclosure is about the seriousness of an offence and whether it makes an individual a lesser or greater risk to a potential employer—hence, the graduated scale of periods for disclosure.

Liam Kerr

If that is right, has analysis been done on which crimes mean that the offender will have a greater or lesser propensity to reoffend? One would think that that would directly dictate the appropriate period for disclosure.

James Maybee

I do not know the answer to that.

James Blair

Given that the Scottish Government decided on the periods involved, perhaps it would be more appropriate to ask it the question. I presume that its decision was evidence based. I know that there was a co-productive process with the working group; the periods would have been based on evidence from that process.

Liam Kerr

Right. Thank you.

Rona Mackay

I will continue with the theme of difficult questions. Do you have any views about what might be done about the potential availability of information relating to previous convictions, including spent convictions, on the internet?

Karyn McCluskey

Oh, grief! The right to be forgotten.

James Blair

Yes—the right to be forgotten.

There was no internet when the 1974 act came in; the issue was newspapers disclosing. I think that we need an examination of what is appropriate and not appropriate for disclosure on the internet. I cannot see from any of the bill documents that the bill addresses that issue. There is a good argument for having that discussion.

Karyn McCluskey

There were two cases recently in England involving a businessman and another person who had asked for the removal of documents from Google under the right to be forgotten. The businessman’s appeal was upheld, but the other person’s was rejected. I think that we are in new territory, now. We have the bill, but we can, through the tips of our fingers, find on the internet court documents and newspaper reports. It is a difficult area. People could think, “Should I just disclose because it’s on the internet anyway?”

James Blair

It is a matter of how appropriate it is to disclose. Is it relevant to the employment that someone is applying for? Is the conviction spent? Has the person asked for it to be removed? Can they have it removed? There is confusion about appropriateness that is creating anxiety about disclosure of convictions.

Rona Mackay

I suppose that there is nothing to stop an employer googling an applicant’s name.

11:15  

James Blair

People just disclose. It is a very difficult matter and the Scottish Government needs to give it more thought.

Rona Mackay

I apologise if you have answered this question previously, but I will ask it for clarification. The bill does not seek to make any changes to arrangements under which spent convictions may be revealed under higher-level disclosure checks, although the possibility of reform could be revisited later. Are you content that that level of check will not be altered?

James Blair

I do not think that we have commented on that previously.

James Maybee

Social Work Scotland is content with the high-level check. We see the reason for it and its value and purpose.

The Convener

I do not know whether Maurice Corry’s question has been answered.

Maurice Corry

It has been answered, partly. Part of the bill is about the armed forces and alternatives to prosecution. Obviously, the Ministry of Defence is a reserved department, so that part of the bill could be seen as being discriminatory in Scotland because more servicemen and servicewomen are coming to live in Scotland and are now included in the new tax system. What are your views on that? Will the bill create a problem? Has that been addressed in the bill?

James Blair

We have not responded on that issue. It is not within our remit.

Maurice Corry

Will it be an issue, down the line?

James Blair

I am not able to answer that.

Karyn McCluskey

I work a great deal with the Army in Scotland. I deal with a lot of servicemen who are now in the criminal justice system, and I would like there to be change. We have a two-tier system, which seems to be inherently unfair. However, that is a personal view.

James Maybee

I do not think that Social Work Scotland commented on that issue in our written submission, but I echo what has just been said. We should always try to provide a level playing field, so where there is a two-tier system, we should address it.

The Convener

Electronic monitoring can be used for disposals in the children’s hearings system. Should that be included in the bill? Are you aware that it is used?

James Blair

Yes—I read the written submission from the Scottish Children’s Reporter Administration. We do not have a comment on that.

The Convener

You have no view, one way or another.

James Blair

Other people are more suitable for responding to that.

The Convener

Mr Maybee—do you have a view on the matter?

James Maybee

Similarly, I would rather not formulate a response on that, at this point.

The Convener

The policy memorandum says that it is possible for Scottish ministers to add to the list by way of regulation. Do you have any concerns about that?

James Blair

In our written submission, we state that changes in powers should be brought before Parliament for discussion and approval, so that Scotland can debate the matter.

James Maybee

I concur.

Karyn McCluskey

There will be developments in technology. We now have alcohol monitoring, and there will be further monitoring as technology becomes more sophisticated. That provision is included in the bill to allow for new developments in technology.

The Convener

Can you comment on the changes to the composition of the Parole Board and the new term of office?

James Blair

We chose not to respond to matters about the Parole Board, because it is another agency.

The Convener

So, you do not have a view at all.

James Blair

No, we do not.

The Convener

That is interesting.

James Maybee

Social Work Scotland’s submission is supportive of the information that is contained in the bill.

The Convener

Thank you very much. That concludes our questioning. I thank all the witnesses for their evidence, which has been extremely helpful.

11:19 Meeting suspended.  

11:25 On resuming—  

The Convener

I welcome our second panel on the Management of Offenders (Scotland) Bill: Professor Nancy Loucks, who is the chief executive of Families Outside; Pete White, who is the chief executive of Positive Prison? Positive Futures; Dr Marsha Scott, who is the chief executive of Scottish Women’s Aid; and Nicola Fraser, who is the local operations manager at Victim Support Scotland. I thank the panellists for their written submissions. As I say to every set of panellists, it is incredibly helpful to have those in advance of our formal evidence-taking session.

We have divided our questions into two main areas. We will start with disclosure of convictions. Ben Macpherson will ask the first questions in that area.

Ben Macpherson

Good morning, panel. I will put to you the same questions that I put to the previous panel. What impact do convictions have on people seeking to move away from previous offending? The bill seeks to make changes to the rules on when convictions become spent, reducing the length of time in some cases, and to extend the length of custodial sentences covered by the provisions. Do the proposals achieve an appropriate balance?

Pete White (Positive Prison? Positive Futures)

They are a step in the right direction. The idea is that people will be able to work out what their disclosure period might or will be, which will make the system a lot clearer. That will help people to realise that they are on a journey back to being a contributing member of society much more than the current arrangements do, as they are highly complex and difficult to negotiate, especially for somebody who has not had the best education or chances in life. That is a big step forward.

There is scope to support people to work out how to disclose properly, and that will be an important element of the policy. In the earlier evidence-taking session, mention was made of employers being supported to recognise how to handle people with convictions in the recruitment process. An employer support network is being set up by a collaboration across all sectors of all employers who currently take on people with convictions, to support others to follow their good example.

Ben Macpherson

Thank you, Mr White. Will you touch on my first question? What impact do convictions have on people seeking to move away from offending? I am aware that your organisation is heavily involved in that area. I note your point, in paragraph 2.06 of your written submission, about the need for publicity. Will you elaborate on why that is important?

Pete White

I apologise if I did not answer the question. Helping people to move away from their offending behaviour includes making sure that they have good accommodation and good access to medication and welfare support. Once those three elements are in place, there is the prospect of their being able to have a job, and people can build on that. The bill will help with that enormously.

If people are able to negotiate and map out a way forward, that will keep them from offending. That will be better for everybody involved, and there will be less harm across the board. As I say, the bill is definitely a step in the right direction.

Ben Macpherson

And the publicity point?

Pete White

I fear that how we pull back what information is out there is way beyond my understanding. I wish that convictions were automatically removed from the internet at the end of the disclosure period, but I do not think that we have the technology available to do that. I, for one, would be appreciative if that were the case. It is all too easy to google somebody’s name, and you may not have the right person or up-to-date information.

11:30  

Ben Macpherson

In your view, a comprehensive campaign to inform employers about the new disclosure arrangements is important.

Pete White

It is. That comes under the process that has led to the setting up of the employers support network, which has involved working with the likes of Virgin Trains, Greggs the bakers and Timpson, which all have good practices in place for considering people with convictions in the recruitment process in a safe, well-managed way. We want to spread the word across the board, not simply with national employers but with all sorts of employers including small and medium-sized ones.

The campaign will start on 22 May, and there will be a reception here in the Parliament to promote the whole thing.

Professor Nancy Loucks (Families Outside)

I can respond on the impact of convictions. As I am sure you are aware, their impact extends well beyond the person who has been convicted. Indeed, the stigma and publicity surrounding convictions can affect the entire family. It can affect their housing status. For instance, if someone has been selling drugs from a particular premises, the entire family can be evicted, even if they had nothing to do with the actual offence. That has implications for where someone can return after imprisonment, and it affects the wider family, even though they have not themselves been convicted of anything. That is a frustration, so we must flag up the need to involve families in discussions about what happens next.

Rona Mackay

I want to ask the rest of the panel about their views on problems with the internet and disclosure. Do you have any thoughts on how those problems could be tackled?

Professor Loucks

We raised that issue in our written submission, as it will need to be addressed. As the previous panel said, the problem came about subsequent to the previous legislation on the issue, and it follows people around. We have concerns about common practices such as publishing the addresses of people with convictions, as that impacts on the whole family. I do not have an answer to it, but we definitely need some sort of response.

Rona Mackay

Are the rest of you in agreement with that?

Nicola Fraser (Victim Support Scotland)

That is not something that we commented on, but victims are affected when court cases are heard. A lot of stuff can be put on the internet. That is very much a new thing, but it needs to be seriously addressed.

Rona Mackay

My other question is on the fact that the bill has not made changes to the arrangements for higher-level disclosure. Are you content with that, or would you like to see that matter revisited at any time?

Dr Marsha Scott (Scottish Women’s Aid)

I was quiet earlier—surprisingly. We have fewer concerns about that than we might have, because most of the convictions for domestic abuse would probably not be affected by the changes around disclosure. Nevertheless, we have some concerns, which we laid out in our written response. However, I will say now—I will probably repeat this a number of times during this evidence session—that it is really important to be clear that violent crime, and particularly domestic abuse, is a relatively anomalous type of crime in terms of revictimisation and reoffending rates. We need to be careful to take an evidence-based, equalities impact-assessed approach.

As I have said, we are very pleased that the bill does not address the higher level of disclosures, but we think there are some concerns around possible extensions of or changes to the time of disclosure, which need to be carefully risk assessed in the context of domestic abuse.

Pete White

We have done very well with the changes for shorter sentences. In due course, that will perhaps give us an opportunity to consider what would be appropriate for the longer sentences, which are not covered by the bill as introduced.

The Convener

I want to tease out the employment issue a little bit with Nicola Fraser of Victim Support. We have covered unspent convictions in that disclosure is not supposed to make someone unsuitable for employment. There has been some discussion about changes to terminology and anything else that could be done. Does Victim Support have a view on the balance that has to be struck?

Nicola Fraser

It is not something that we commented on, but it is an issue that everyone in the voluntary sector is aware of. There is a lot of misunderstanding in relation to when and what people should disclose. A lot of organisations still give a blanket “no” in that regard. We try not to take that approach, but we are dealing with extremely vulnerable people, so the issue is vital. As was mentioned earlier, our approach to the protecting vulnerable people scheme process is very much based on what crime is disclosed and what level of impact that might have if we are dealing with vulnerable people.

The Convener

You mentioned the need for more awareness raising, and you talked about some good examples from Virgin and Timpson. Could anything else be done to help with the problem?

Pete White

The employers are only part of the deal. People who are going through some sort of punishment, whether it is in the community or in custody, should be given some information and support to learn how to disclose appropriately and effectively.

In general terms, the wider public could benefit from better understanding the direction of travel of disclosure and the way in which things are changing in that regard. The stigma that is attached to employers who employ people with convictions does not seem to have reached Virgin, Timpson or Greggs, and we need to spread that feeling much more widely.

The Convener

Does anyone else have any views on that?

Dr Scott

One of the issues for us is that the people who are involved in the system—the victims, the children and so on—need to be much better informed. I heard the reference to people who have not been lucky enough to have had a great education. In response to that, I would say that I cannot understand the rules and I have had quite a good education. At some point, we have to look at the outcomes of this. We need to look at how people are informed and, more importantly, what we do with the information that they give us in response. In the context of domestic abuse, in particular, it is important to talk to victims not only because it is the right thing to do but because, empirically, they are the best predictor of further harm by the perpetrator. If we do not take advantage of the data from them when we inform them about arrangements around disclosure and so on in relation to convicted offenders, we are missing a trick.

Professor Loucks

I underline the fact that we need to know what to do with that information once it is disclosed.

A lot of work needs to be done with employers, not just in relation to the ban the box movement, which seeks to stop there being a simple tick-box that asks whether someone has a conviction, but also with regard to the requirement for an assessment of whether a conviction that someone has disclosed is relevant to the type of work that they are applying for.

Liam Kerr

I understand that a tick-box exercise can prejudice someone’s employment future for quite some time, and I have sympathy for that point of view. However, some people might say that it is appropriate for an employer that is trying to select from quite a large number of candidates to say that, given that there is a need for some kind of filter, they will move forward with the ones who have played the game, as it were, rather than the ones who have a conviction, whether it is spent or unspent. Do you see that side of the argument?

Pete White

According to Government figures, 38 per cent of adult men and 9 per cent of women have at least one conviction. Are you going to exclude all of them from being recruited for a job? I do not think so. We need to be careful that we do not respond to a disclosure of a conviction without an understanding of when that happened, what happened and what has happened since then by way of the individual moving on.

Liam Kerr

The submissions from Families Outside and Positive Prison? Positive Futures suggest that we need to address the practice of employers asking about unspent convictions during the initial stages of recruitment. However, Mr White, are you suggesting that, far from addressing—and stopping—the practice of asking about it, there needs to be a more open conversation in which that is done up front?

Pete White

The recruitment process could be set up in such a way as to enable somebody to be seen as the person that they are now and to be about whether they are suitable for the job. At the point of their being offered a job, self-disclosure by the individual would be a good thing to do, because, in that process, the employer would have seen the person and not the conviction.

Liam McArthur

I want to take us on to disclosure of convictions. Earlier, you touched on the additional clarity that you thought the bill could provide on when disclosure should and should not happen. From the previous panel, we heard that the process would be tricky but that, with guidance, it is hoped that progress could be made. Does anyone on the panel have thoughts about improvements that might be made to the bill to give greater clarity, if not to employers—it was suggested that they might be covered by reserved legislation—then certainly to those who are expected to disclose and, by extension, to those who advise them.

Pete White

I hesitate to go first again—my apologies. It would be possible to come up with some means by which employers, potential employers, friends, family and individuals who are involved could put all the information about themselves—and, in the case of the individuals, their date of birth and their convictions—into a machine that would come up with an answer as to whether that individual should disclose. We worked with a software engineering student from Edinburgh Napier University and got very close to achieving that—just in time for the new bill to come out and for it to be suggested that our figures might have to be changed. However, a system that does not mean that disclosure is left to chance would be very good and could be used by everybody if it were online, so that they could check out the position for themselves.

Liam McArthur

As long as someone’s information was not left online.

Pete White

I am sure that we could sort that one.

Liam McArthur

If other panellists have no further views on that, I will turn to the distinction that has been made on timeframes for disclosure, depending on whether an individual’s conviction happened before or after their 18th birthday. I assume that panellists support that, but is that a suitable threshold, taking into consideration the point that the previous panel made about the differentiation between higher-tariff and lower-tariff convictions?

Professor Loucks

That is not Families Outside’s area of expertise and we did not comment on it specifically, but it seems as reasonable a threshold as there can be. A distinction will be made between more serious and less serious offences.

As we go through this discussion, I would like to give an example—although it is not one from Families Outside, unfortunately. I was a child protection officer for a local gymnastics club. One of the training examples that Scottish Gymnastics gave was of a man who is a qualified coach and who has on his record a conviction that will stay there for life because it is for a sexual offence—that of having sex with an underage girl. However, the details of the offence are that he was 16 years old when the conviction went on to his record, his girlfriend at the time was 15 and her mum was the one who had brought the case to the police because she objected to the fact that they were sleeping together. The police had imposed a £50 fine but, unfortunately, that stays on his record forever. He and his girlfriend are now married and have four kids, and they are both excellent gymnastics coaches.

Such a case shows the need to look behind the label and to take the time to look at the details and circumstances of the offence, which most people just do not get the opportunity to do. Over time, that example has stuck with me; such a conviction is something that could be scarring for life and that could carry on being on someone’s record without their necessarily being a risk to the public.

The Convener

We will move on to questions on electronic monitoring. Before I bring in John Finnie, there are a number of submissions in which people have argued that electronic monitoring should be available as a condition of bail. The Government seems to be open to that. Could I have the panel’s views? Nicola Fraser, would you like to start, for a change?

11:45  

Nicola Fraser

It is an interesting issue, because many victims struggle with bail and bail conditions. An intensive level of risk assessment would be necessary prior to releasing somebody on bail with a tag instead of remanding them, and a lot of factors would have to be taken into consideration. With a crime that lies on the threshold between custody and the use of tagging, we need to take into consideration the fact that—especially in smaller rural towns in Scotland—the individuals in question will come into contact on a regular basis. In Brechin, for example, there is one Co-op, where everybody does their shopping. That is an example of the kind of issue that we need to take on board.

We are talking about a victim who has just been traumatised. If the person responsible was released on bail, they would be back in the community, so a lot of risk assessment would need to be done. In addition, there would need to be huge ramifications if that person breached a condition of bail or of tagging. The community will never accept such a system unless it sees that something happens when there is a breach.

The Convener

It is unclear what the ramifications of a breach would be—the bill is very vague about that.

Do the panellists have any other comments?

Dr Scott

I echo what Nicola Fraser said. In this context, as in virtually every other context, technology can be a great boon and a great challenge. It is a case of understanding the context.

We have concerns about the accused being released prematurely, before an appropriately conducted risk assessment has been carried out. I will continue to bang on about that, because when it comes to police risk assessment in the context of domestic abuse, the evidence base is quite thin. Although I think that we need to use the tools that we have, we really need to understand the role of professional judgment in such decisions. Professional judgment that is not competent around the dynamics of domestic abuse is very dangerous.

From our perspective, we underscore the fact that there is not a yes or a no answer when it comes to the use of electronic monitoring and bail, although we absolutely believe that it needs to be a possibility. What is critical is the decision making around it.

A piece of research is being done down south by the College of Policing on police risk assessments. We need to take some of the findings of that work on board when we think about rolling out the use of tagging and a number of other measures to do with the new law. In addition, the breach issues will be extremely important.

Pete White

I agree completely that risk assessments need to be carried out very thoroughly and professionally. That is an important part of the process. When it comes to a breach of conditions, there should be a zero-tolerance approach, because individuals who are under some kind of electronic monitoring need to know what the limits are. I find myself surprised to hear myself say that. It is also important that people with a court case pending realise that it is a very serious matter and that, if they are to be released on some kind of monitoring, their conduct will, in effect, form part of the trial process.

The Convener

You are saying that a breach of conditions must be taken extremely serious.

Pete White

Absolutely.

The Convener

That is interesting.

Professor Loucks

I will link my response to the response that we gave recently in relation to the use of remand generally. I would not necessarily say that electronic tagging is appropriate for everyone who is remanded into custody, but we should look at why we remand people into custody. For people who do not turn up to court, for example, better use could perhaps be made of things such as supervised bail, which is used very inconsistently around the country. The issue should be connected to that conversation.

The Convener

Daniel Johnson has a supplementary.

Daniel Johnson

Professor Loucks has just touched on what I was going to ask about. Public safety is one dimension of the use of remand. The risk of flight and the reliability of the accused in turning up at court are others. Would the panel agree that there are a number of considerations? Why might electronic tagging be a good alternative to remand?

Professor Loucks

Tagging can be useful where people have particularly chaotic lives. I was at an event in Lanarkshire last week, where a young man said that he wished he could remain tagged. That was a rather extreme response. He said that it helped him to create some stability, predictability and accountability, especially in trying to return to the community. Tagging could also provide that structure for remand, although it has to be supported, rather than be purely surveillance, to make it most effective.

Pete White

There is great potential in people being able not to go into remand halls. The conditions under which people on remand are kept are quite different from those of convicted prisoners. The lack of structure and of access to services for remand prisoners does nothing but damage to a large proportion of the people who are in there. They would have a better chance of recovering their sense of being a member of society if they were on a tag than if they were held in the limbo land of remand.

I agree that risk assessments are vital.

Liam McArthur

I am trying to link Professor Loucks’ comment about chaotic lifestyles—a message that the committee has heard from most witnesses throughout our inquiry on remand—with Mr White’s comment about breaching conditions being one strike and you are out.

As we heard from the previous panel, this could be a management process over a long period of different incidents. I am not sure how we square Mr White’s approach to a breach of conditions and the characteristics that often crop up with the type of people who we are trying to keep out of remand and support into better behaviour.

Professor Loucks

For me, that underlines the point that surveillance on its own is not enough. What is needed to go with it is the support that can prevent a breach in the first place.

Pete White may have something to add.

Pete White

The zero-tolerance approach is one that I was encouraged to take on board by Karyn McCluskey. I would not argue with her.

Dr Scott

One of our big concerns on community disposals generally is a failure to act appropriately in response to breaches of the orders. That leads back to the question of who manages the orders and how much resource and training they have for doing that.

There are huge gender issues around who gets sent on remand and the impact of being held on remand. I urge the committee to be mindful—as I suspect that you already are—that the impact on women offenders is more harmful. We need a justice system that responds to the equality characteristics of both victims and offenders. When we try to create responses that are not nuanced in the appropriate ways around equalities, we do great harm to both.

John Finnie

We have touched on bail and remand, where there is potential for electronic monitoring. Such monitoring as a stand-alone measure was endorsed by a 2016 report, which commended its use along with other interventions.

When does the panel think that it would be appropriate to use electronic monitoring?

Professor Loucks

This again connects to the discussion about the presumption against short sentences. Electronic monitoring should be considered when the person can benefit from support within the community through addiction programmes, mental health services and other supports that they can access in the community without breaking the connections with the supports that they might already have, such as family connections, housing and employment. If someone is on a tag rather than sent into custody, they can at least maintain those structures that are more likely to keep them from offending in future.

Dr Scott

I am happy to weigh in. We think that electronic monitoring has the potential to improve the safety of victims and their children, so we support its use in that context. We are mindful that many of the accused—more than we would like—are released into the community prior to trial, but also out in the community are offenders with CPOs, or whatever disposals have been made, that do not include custody. I remind members that, currently, only 1 per cent of convicted domestic abuse offenders are sentenced to be in custody for over a year. Therefore, we are talking about a lot of convicted offenders. If electronic monitoring could be used to better manage their presence in the community and their danger to women and children, we would like that.

We are concerned about the failure to understand a number of key things, one of which is that, when victims and abusers live apart, there is not additional safety and there is often additional risk. People still suffer under the myth that separation equals safety. When that myth is combined with potential technical fixes such as electronic monitoring, we have a system that is far more confident about the safety of victims than it should be. Electronic monitoring is an opportunity, but it is absolutely critical that it be done with appropriate understanding of the dynamics and the context of domestic abuse.

The Convener

I want to intervene briefly. We are competing with some grass cutting outside, and we are trying to get the window closed. That is done automatically downstairs, and the window may make a bit of noise when it closes. If we hear that, I might suspend the meeting briefly so that what people are saying is not blocked out by the noise of the window closing. [Interruption.] We will continue. If the noise interferes with our hearing people, we can stop. Where were we?

John Finnie

An issue that came up in an earlier session and which has come up again is the support that is required to underpin electronic monitoring. The Scottish Government refers to making electronic monitoring more person centred and more fully integrated with other community justice interventions. Does the bill go far enough in that direction?

Nicola Fraser

The current situation is that people are released with an RLO with absolutely zero supervision. There is absolutely nothing. They have no support or help, and they are out in the community. Any form of supervision or support in respect of a tag will definitely be beneficial. Whether that support goes far enough is difficult to say, because we have to consider the victims.

What I will say may be quite harsh, but communities have no faith in community sentencing. That is because—we have discussed this before—it takes too long for someone to be found to be in breach of their order. People have suggested that we look at zero tolerance for breaches. If a person has an RLO, they can have eight or nine breaches of 10 to 15 minutes each. How long do we wait until they are in breach of their conditions? How many times will somebody stand outside a victim’s house before they are in breach? The supervision aspect is to try to help people to reintegrate into society and become less likely to reoffend, but the victim must also be supported to know that they are safe.

John Finnie

If that is the issue, has sufficient regard been paid to the level of support, if not through direct reference in the bill, then in the supporting documents? That there is no point in having the technology without back-up from humans seems to be a recurring theme.

Dr Scott

I support the reference to supervised bail. There is some good evidence from the US looking at serious supervised bail interventions in the context of domestic abuse, which have really good outcomes in reducing reoffending. My sense is that there is a great opportunity also to consider the expanded use of supervised bail as support. It also feeds information into the system much faster and earlier about the likelihood of a breach.

12:00  

John Finnie

Is that covered by the supporting documents to the bill, Dr Scott, or is there just a passing reference to being more people centred?

Dr Scott

I am sorry, I could not hear you, John.

John Finnie

We heard from the previous panel that additional resources would be required to support that approach. Do you feel that the Scottish Government acknowledges that?

Professor Loucks

We felt that the bill focused very much on the surveillance and security side of things, without enough reference to the need for structured support to be available. Much more emphasis is needed on that as a requirement or condition, and not just on the surveillance. It also requires a recognition that that support will not be universally available throughout Scotland—it might be more concentrated in urban areas, for example—but without that support there will be difficulties with compliance.

I can give an example. It is not just about things such as addiction, housing and so on, which are the standard ones. We had a call from a family that had taken their daughter home after her release on a tag. The house was surrounded by drug dealers because they knew that the daughter was there; they wanted to collect debts and to try to get her to resume her habit. There was no support for the family in dealing with that, let alone the support that the daughter needed to address her addiction in the first place. It is important to try to make support universally available if the measure is to succeed.

Pete White

One of the benefits of support is not just the technical monitoring of somebody, but the discussion with them. The personal contact is vital. If a person who is on their journey back knows that there is somebody out there who knows the full story and from whom there is no need to conceal what is going on, that could allow them to develop what may be the first positive relationship that they have had in a long time. That is where support is particularly beneficial. The fact that it is not clearly specified in the bill is good, because there is room for innovation and expansion and for new things to come along and be introduced that are not set down in a bill at the moment.

Dr Scott

Can I just add that there are a number of on-going pilots, which started not long ago. We have a commitment from the justice directorate to carry out a domestic abuse pilot around electronic monitoring, because we were convinced that we needed to ask some very specific questions about electronic monitoring. We believe that there might be different outcomes from such a pilot depending on whether it was done in a very rural and remote area or an urban area.

The question of resources is a really good one. I agree that the bill leans towards the idea of a tech fix, rather than working out what resources would be needed to make the technology work the way we want it to. I do not think that that is not still possible, but it is important for us to be careful not to make decisions about the implementation of electronic monitoring—and also short sentences—until we have some information from the pilots.

John Finnie

Will you be able to furnish the committee with the information about those pilots?

Dr Scott

The justice directorate is doing the pilots, so they are the people who should provide that information. We are meeting them in a couple of weeks to talk about the domestic abuse pilot.

Liam McArthur

On the back of the discussion about resources and the additional ones that might be required to support the wider use of electronic monitoring, do you think that there has been enough assessment of the resource shift? If we are trying to keep people out of remand, presumably we need to shift resource from what is going into remand at the moment into more community-based local measures. Is it your impression that that has been debated and that the Government has a clear view on how it might manage that budget shift?

Pete White

There has not yet been an active debate of sufficient depth and extent, but the general feeling among the people I represent is that if people can be helped not to be in prison, that will save a lot of money further down the line. The timeframe for budgeting is too short. Investing in helping people to start their journey back to being a constructive citizen, without going to prison, will save a lot of money further on.

Liam McArthur

The distinction that you make is that you do not necessarily foresee a short-term budget shift; you think that a medium-term calculation is more likely, which will free up the resource for other measures.

Pete White

I would like to think so.

Dr Scott

My opinion is—possibly—slightly contrary. If we shift into the community folks who would ordinarily be on remand—although I have strong concerns about the use of remand, so I want members to hear my views in that context—we will need to be careful that we do not shift the task of supporting victims and their children to organisations such as Women’s Aid and other domestic abuse organisations, which would have to advocate for safety in the context of new technologies when they do not have more training than anybody else in the use of such technology and when they are stressed by local budget cuts. In the face of system change, a careful analysis is needed of where support for victims will come from. We must ensure that we provide support not just with my organisation but with other victims organisations.

Daniel Johnson

The discussion about the past few questions has been interesting and has hit on the central tension. Fundamentally, the increased use of electronic monitoring should enable us to provide people who would otherwise be in prison with the opportunity of being outside. However, that comes with risks. That is a broad summary.

I will look at that issue in a little more detail. Marsha Scott discussed risk assessment. We heard earlier that improved clarity about risk assessment is needed and we heard a call for courts to provide an evidence summary, which hits on the support point. The risk assessment is critical to providing the right support to individuals. Does the panel agree with the call for an evidence summary to be provided? To address the central tension, what other requirements for risk assessment would you like?

Pete White

It is dangerous territory for me to think about what happens in a courtroom. I would like it to be a standard requirement for the sheriff or judge to read social work reports before sentencing. That is important. The idea of carrying out a risk assessment before somebody is found guilty is quite difficult, if a choice between custody and the community is within the frame of the offence that has been committed.

The risk side of things needs to be balanced carefully. I am well aware of the need to look after the rights of victims of crime and other people in the community; we also need to be really sure that, when we put somebody into the community, we know that the chances are strong that, with the right support, that person will not offend again. An evidence summary is a crucial part of that.

Daniel Johnson

Do the other panellists agree?

Professor Loucks

I will say something about the type of risk that we are talking about assessing. In a risk assessment, the tendency is to focus on the risk to the public—the risk of reoffending.

That is perfectly understandable, but wider questions need to be asked about, for example, the impact of tagging on the rest of the family. With regard to people who are tagged in their home, that is a new field of research, but we know that it often means that the rest of the family tends to become isolated because they are left with almost a policing role of ensuring that the person complies with the conditions of their tag. Further, if the person who is tagged cannot go out, the rest of the family will not go out either. Another problem is that, if the offence is unrelated to a domestic abuse offence but there is an abusive relationship, that is not part of the risk assessment.

We need to ask about the wider context and the impact on the family when these orders are made.

Nicola Fraser

We regularly come across individuals who are involved in home detention curfews or tagging. When they go through the court system, the police usually check their bail address to ensure that it is okay. Once they are tagged, the address is supposed to be checked to ensure that it is compatible and that the other individuals who live at that address are happy with the arrangement. However, what happens then is that we get a family member on the phone afterwards saying, “I couldn’t say no—I am terrified of them.” A risk assessment needs to be done. A lot of the people who get in touch with us in that context are grandparents or members of the extended family, because the close family has already said. “Do you know what? You’re not coming home. I’ve been through that already.” It is important that the level of risk for the family is taken account of.

Another point is that, as has been said, someone with a 7 pm to 7 am curfew cannot go out, so everybody comes to them. That is the biggest issue for families, because they then have all these people at their house, and there is no escape.

Daniel Johnson

That really brings to life the broad-spectrum approach that risk assessment has to take.

Marsha Scott raised an interesting point about the possibility of electronic tagging improving the situation with regard to CPOs and providing assurances in relation to people who have been given such a sentence. That could be quite controversial. A number of submissions have highlighted that issue. In particular, the Howard League raised concerns that the option might be used to add on sentences or increase sentences for people who would otherwise be at liberty and not in prison; it wants the option to be focused on providing new opportunities for people who would otherwise be in prison. How would you reflect on that point? Other witnesses might want to reflect on it, too.

Dr Scott

I will bang the same drum as before, and say that domestic abuse is different. A failure to highlight domestic abuse, given that it forms 25 per cent of our police business and 20 per cent of our Crown Office business, would be a hugely risky move.

It is important to think of electronic monitoring in the pre-conviction and the post-conviction settings. However, I also think that it needs to not be an easy answer. I have sympathy with the position of the Howard League, but I have to point out that crime and offending are not homogeneous things, and offenders in the context of domestic abuse are very different.

The approach has to be appropriate for the context. If you cannot find a way to create a bill that is sufficiently flexible so that we protect victims of domestic abuse and sexual assault at the same time as we create a society that allows people to move on from other kinds of crimes, the approach is not right and must be redone.

Daniel Johnson

Another way of putting it would be that the option can do both things: it can improve the situation with regard to existing CPOs as well as provide opportunities that do not currently exist.

Dr Scott

I agree, and I think that that is what we said in our submission.

I will add a quick point about something that is the elephant in the room around criminal justice social work, from a domestic abuse perspective. The Caledonian programme is a perpetrator programme. Everyone wants something to fix perpetrators of domestic abuse and we need support to look at how to respond.

12:15  

A third of the country will not have a Caledonian perpetrator programme, even after the roll-out. For a long time, criminal justice social work departments have made it up as they went along if they did not have access to appropriately accredited perpetrator programmes, such as the Caledonian programme, because they are under local pressure to provide intervention for courts. It is important that we consider the risks that are associated with the different criminal justice social work interventions that are supposed to help convicted offenders of domestic abuse to limit their reoffending. There is little evidence that the interventions limit reoffending, but they provide a sense of confidence, which is not real, about safety being provided to victims and their children.

With the resources for criminal justice and other parts of the system that might come into play with the passage of this bill, we need to look at perpetrator programmes in the context of domestic abuse and what to do about the third of Scotland that will not have such a programme.

Pete White

Could you repeat the question, please?

Daniel Johnson

I will need to remember it first.

I was asking about whether electronic monitoring is an opportunity to get people out of prison who otherwise might have been in prison, or whether there is a risk that it will simply be an add-on for people who already have community-based orders or sentences?

Pete White

Electronic monitoring adds an option. The Government’s understanding is that short-term prison sentences do more damage and are less likely to help people to reconsider their way forward than community-based sentences, which have a far higher success rate in relation to completion and people not reoffending. If electronic monitoring can support that positive success rate, it needs to be considered.

No process should be automatic in any of this; the approach should be individualised and should take into account everything that Marsha Scott and Nicola Fraser said about the needs of families and victims of domestic abuse. The approach has to be worked out carefully and not taken as a simple answer.

Professor Loucks

The bill introduces the scope for electronic or technological options to support the community, such as alcohol bracelets, which can be used voluntarily and are effective in the right context to support people who are in recovery from addiction. You do not want to add so many conditions that people are set up to fail—that is not helpful.

Maurice Corry

On that point, what do you see as the opportunities and risks of implementing a scheme for electronic monitoring of alcohol and drugs?

Professor Loucks

That issue was addressed in our written evidence, which said that its use purely as a punitive measure goes completely against recovery-focused approaches. It can be used, ideally on a voluntary basis, to support people who are trying to work towards their recovery. They can use the scheme as an excuse to avoid going out with their mates to the pub, similar to what the young man said about tagging. However, it needs to be used in that context, rather than to punish people for having an addiction.

Pete White

I agree with Nancy Loucks that its use should be as a support, not a punitive measure, and must be voluntary.

Dr Scott

Yes.

Nicola Fraser

I agree, yes.

Jenny Gilruth

Good afternoon to the panel. My question is a supplementary to that of Maurice Corry. Nicola Fraser said in her submission that GPS technology has

“the potential to give the victim a sense of security by limiting the movement of the offender and creating safe spaces for victims.”

I was quite taken by the written evidence from Marsha Scott, in which she points to the limitations of GPS, in that it cannot detect certain types of behaviour, such as text contact, chance encounters and social media contact. Her submission also calls for

“further exploration with the Scottish Government and criminal justice partners of the ... use of GPS”

with bail conditions. Do the other panel members support that? Do you acknowledge the limitations that GPS technology might have with regard to crimes such as domestic abuse?

Pete White

We have to be careful that we do not have a one-stop-shop solution. GPS has great potential, but we need to ensure that it is properly supported and used in a way that protects the victims and gives them sufficient confidence to go on with things. I do not know how we can control access to social media or the telephone, although I understand why that issue has been raised. That is where the support element comes in. Somebody who is under monitoring must be supported towards realising that making contact by those means is wholly inappropriate and harmful. The support element is the important bit there, as we cannot prevent people from accessing machines to communicate with others.

Nicola Fraser

There are different kinds of victims, and I totally respect the fact that the issue is different in a domestic abuse situation. The same applies to stalking or similar kinds of cases, in which the perpetrator is often very manipulative, clever and underhand. I agree that it is difficult to stop access to the internet or to texting. My feeling is that, if it is part of the order that the person is not allowed to contact someone or enter a zone, that has to be dealt with the second that they breach that. That goes back to the point about the community having faith in the breach process. If there is an exclusion zone and a buffer zone and somebody goes in it, we need to deal with that immediately to give the victim confidence. The victim needs to be able to report back and say, “He keeps contacting me and that is a breach.”

There are a lot of different approaches. I get the point that domestic abuse is a totally different thing. A lot of domestic abuse is based around family members such as children. Perpetrators tend to be desperate to get access to children, and there are lots of processes involved. The issue has to be dealt with as part of the order, the risk management and the breach process.

Professor Loucks

It is worth underlining that everything needs to be done in close discussion and communication with victims. Not long ago, we worked with a family in a situation in which the ex-partner was sending a series of abusive and threatening texts. The police response was to remove his phone, but the problem with that was that the phone was the one way that the police knew where he was, so it was actually more disconcerting for the victim for him not to have his phone than it was to receive the texts in the first place. We need to ensure that there is a conversation about such issues and that it is not taken out of the victim’s hands.

Dr Scott

There has been some encouraging research—although it is a bit old now—on the use of actively monitored GPS with an exclusion zone that is sizeable enough to give women confidence. An alarm is set up so that the woman knows that there will not be any surprises in the middle of the night without the alarm going off and—it is a really important “and”—they trust that there will be a timely and sufficiently robust response if the alarm goes off. Those are important conditions. It is about making the process work for us absolutely in communication with victims. Everybody will say that GPS might not work here or there. We have the keys to use it, but it is critically important that, initially, we explore the impact and test it before we roll it out. For us, GPS is exciting, but it is not magic.

The Convener

Given that the bill is a little vague about what would happen with breaches, should that be explored further as we scrutinise the bill? Should we ask for more information and detail on breaches? Perhaps we should ask for pilot projects to test the various scenarios. For example, it is good for people to have mobile phones because at least we know where they are, but if they use phones in ways that cause fear or alarm or continue the very behaviour that led to their being electronically monitored, that will need to be dealt with. Is there enough in the bill or does more need to be added as we scrutinise it? It seems to me that that is the difference between this being an effective and worthwhile tool and it going in the wrong direction.

Nicola Fraser

If you want to build community confidence in this, there needs to be a zero-tolerance approach. I understand that that is difficult because it requires a lot of the statutory bodies to buy in to it and the police would need to react quickly. I do not know how the courts would react quickly. Usually, they get a breach report and they will assign a hearing within four weeks, but four weeks is no good to a victim. I agree that we might need to look deeper into how the system will cope with increased breaches if we have zero tolerance in relation to these things.

Dr Scott

We definitely need more clarity on the status of a breach. Will it be a criminal offence and, if so, in what circumstances? It is already a real problem in relation to CPOs. Let us not replicate that problem. Let us be clear from the beginning about how we expect the orders to work in the context of offenders who will not necessarily have that good, positive response to community disposals. Many will have that response, but there is a big question mark about domestic abuse offenders.

Pete White

I have nothing to add. I fully support what Marsha Scott and Nicola Fraser have said. It is a way forward, but we have to be careful that we do it properly, so a little more direction in the bill would be helpful.

Professor Loucks

I have nothing to add.

John Finnie

We have a submission from Social Work Scotland, which I entirely agree with. On remote alcohol monitoring, it says:

“It is important to acknowledge that the typical journey towards change may involve several lapses or relapses for example.”

In relation to the issue with someone with an alcohol addiction problem—I am talking simply about the consumption of alcohol, rather than about any other issues—do you understand that there must be a level of discretion around how that breach is responded to?

Nicola Fraser

It is not something that we commented on, but we know from experience with things such as drug testing and treatment orders that people can relapse a number of times. Would it not be beneficial to monitor somebody’s alcohol level as part of the support? However, I think that they would have to have started on that pathway, and there would need to be support such as alcohol counselling and so on.

Dr Scott

Are you talking about the use of alcohol bracelets, John?

John Finnie

Yes, indeed.

Dr Scott

If no domestic abuse is involved, I think we have to look at what the literature tells us about recovery. It tells us that recovery from addiction involves lapses. The construction of a response around that needs to reflect what we know about what is most likely to be helpful in recovery.

As with the other elements of the bill, we would benefit enormously from some pilot projects. I know that there is a plan to do some pilots including alcohol bracelets to find out how they work. I am concerned about there being a punitive response in relation to them, but I am also concerned because people misunderstand the relationship between domestic abuse and alcohol and think that, if they keep an offender from drinking, that will keep them from offending. That is a really dangerous assumption.

Pete White

The concept of people wearing an alcohol bracelet is a good one, but it has to be a voluntary decision—the person has to put themselves up for it. That is part of the recovery process. There will be lapses and relapses, but the direction of travel is one that can be supported, in the right circumstances, in order to help people to move away from the use of alcohol and to reduce their likelihood of reoffending.

12:30  

John Finnie

I am conscious that you used the term “zero tolerance” earlier, Mr White. I understand that approach as it relates to someone going somewhere where they should not go, but in the case of someone breaching a requirement when they are sitting in their house, would you hope for a measure of discretion to be afforded by the authorities?

Pete White

What a wonderful question, John. Thank you so much.

John Finnie

You can work out the answer that I am hoping for.

Pete White

A lot depends on the way in which somebody conducts themselves prior to their breach in terms of alcohol. That is a different thing from someone breaching an order that is to do with their behaviour in the wider community.

Professor Loucks

The bill addresses different types of technology. If the sections on breaches are to be clear, they must acknowledge that there must be different responses to breaches based on the different types of technology that we are talking about. The response that is required when someone goes outside a boundary or breaks a curfew is different from the response that is required for someone who is using an alcohol bracelet. That should be addressed either in the guidance documents or in the nuances of the bill itself.

Rona Mackay

Do you agree that, before the bill comes to fruition, it is vital that the issues are communicated to the public in the correct way? I am thinking about families and children and the removal of the stigma that you were talking about. I can imagine that children—younger ones in particular—will need some form of counselling to answer their questions about why their mum, dad, big brother or big sister cannot leave the house between certain hours. Do you agree that that will require quite a lot of work?

Professor Loucks

That is what my organisation does, so I agree that it requires a great deal of work and a willingness to talk about the issue. When someone goes to prison, the tendency is to pretend that something else is happening—“Daddy is working away,” “Your brother’s gone into the military,” or, “Mummy’s in hospital”—and you can see similar types of excuses being used for tagging. In order for children and young people to be able to deal with these issues, they have to have open and honest conversations in which they can ask questions.

Rona Mackay

With regard to the need to communicate the issues to the public, I can already imagine the hysterical headlines that we will see when the policy gets out there. We need to be careful about how things are presented to the public and how we communicate the policy, so that there is no detrimental effect.

Nicola Fraser

We are a bit tied by the press, which always goes for the negative aspects. We get that all the time. The press reports on someone who commits an offence while they are tagged or on bail but never reports on the positive aspects even though, let us face it, a lot of positive stuff has come out of community-based disposals, which support victims and support people to get back into the community. We have to get the approach out there in a positive way. That is the major issue because, without buy-in from the community, the approach is a difficult one to sell.

Dr Scott

This is about what kind of country we want to be and what kind of communities we want to live in. We can say that the approach is about giving people second chances, but we should also say that it is about making some people safer. If the changes that we are looking for are made, we can say that the bill contains a balanced approach to ensuring that people who are vulnerable get the support that they need and benefit from the technological protections that we might be able to provide.

Pete White

A number of initiatives are under way that will support the publicity around the bill. The employers support network is an example of a forum in which people talk about the benefits of people with convictions finding work. Disclosure Scotland’s Scotland works for you programme is also doing a good job of seeing that someone who has committed an offence and been punished for it should be able to move on in a structured way. The bill is not standing alone, and I think that we can do something very positive with it.

Jenny Gilruth

I have a brief question on resourcing. Dr Marsha Scott mentioned that only a third of the country has access to the Caledonian perpetrator programme. We heard in the previous evidence session from Social Work Scotland, which highlighted in its written submission that the use of electronic monitoring

“in Scottish prisons as a condition of temporary release from prison may further increase the number of assessments completed jointly by community based and prison based social work and this may also impact on staffing levels/resources.”

Do you foresee that the legislation in its current form will have a resource impact on your organisation?

Dr Scott

First, I need to make sure that I was not giving you the wrong idea—we do not have the Caledonian programme in two thirds of communities at the moment. It is getting rolled out to an additional one third, but we will still have a gap of a third once that happens.

I foresee some concerns, in part because, if this is done correctly, it means more information flow. There will need to be more information flow with prison officials, with victims and children, and with criminal justice social work. Sharing information in the general data protection regulation world that we have at the moment is quite complicated and difficult.

Additionally, if we have fewer people in custody—which is a bit of a nightmare from our perspective, in some ways—there will be more of a burden on our women’s workers and children’s workers in terms of providing advocacy in the legal system.

This is not a plea for more money; this is us saying, “Please, we need an impact assessment,”—although if there is more money around, we will take it.

Mairi Gougeon

I have a question on an area that we have not really touched on in the evidence that we have heard so far. It is on part 3 of the bill and the changes to the Parole Board for Scotland. A couple of the submissions have referred to this area—Pete White’s submission in particular says:

“there is a lack of understanding amongst the prison population and the wider public of the detailed workings and procedures of the Parole Board.”

I would like to tease that out a bit more, because it is certainly an area that the Justice Committee has not heard too much about and we are not too familiar with it. The Families Outside submission talks about engagement with families through the parole process and I would like to hear a bit more about that as well.

Pete White

The difficulty that I highlighted in our written submission is that a great many myths go round prison halls, and the people who have successfully negotiated the parole process are no longer in the prison to tell people how it works, because they have gone. The rumours and the misunderstandings lead to a lot of people failing to manage their expectations, because they do not have any kind of factual basis to them. That leads to a lot of upset and anxiety, which appears as antisocial behaviour in the prison because people are frustrated. If people understood how the process worked, they would realise that perhaps their opportunities for parole were further away than they imagined.

Professor Loucks

I underline that, in our organisation, we are not particularly expert on the operation of the Parole Board by any means. Our written submission stated that quite clearly. However, we feel that there is an opportunity for it to engage families in the conversation about release and preparation for release much more effectively than it does at the moment. For example, in preparing someone for release, the Parole Board might not discuss conditions of parole or conditions of release such as housing—where they are allowed to live depending on the nature of the offence—until six weeks prior to release. Even if the family is willing to support the person on their release—we were working with a family that was willing to sell the house, move somewhere else, relocate the kids in different schools and so on—that family will not be involved in that conversation at all until six weeks prior to release, which is not enough time to make quite major life-changing decisions for the entire family.

It is also about recognising that families, although they might be supportive, are not just a tool in the resettlement of the person who is coming out of prison. It is about recognising the impact on those families in their own right as well as their ability to support someone on their release, because there will be complexities in relationships and families. It is about making sure that families are recognised as people who are impacted separately from what is happening to the person who is coming out of prison.

Mairi Gougeon

So there needs to be more information and better general awareness of how the process works, and people need to be involved at an earlier stage.

Professor Loucks

It is also important to make sure that they are involved in the discussion. There is often a perception from the family’s perspective that the social work assessments and social worker home visits that are required for people who come out of prison after a longer-term sentence relate specifically to the prisoner and not to what the family might need.

The Convener

At present, there must be a High Court judge and a psychiatrist on the Parole Board, but the Scottish Government says that that is not necessary. The policy memorandum states:

“The judicial member rarely sits and their role can be fulfilled by the legal members of the Board. There are also sufficient members with experience in forensic psychiatry”.

Are you concerned about those two must-have elements being removed from the Parole Board?

Pete White

One of the issues is that parole hearings sometimes cannot go ahead because one of those people is missing. That is my understanding of the reason for the proposed change.

The Convener

I wonder whether that is a good reason. I would have thought that those people should be there to assess.

Dr Scott

I have to confess that my expertise in relation to the Parole Board is pretty thin. However, I cannot believe that we have been here for an hour and I have not yet talked about the importance of training for sheriffs who hear domestic abuse cases, so I will just say that we need more evidence in the whole system from victims and their advocates around the likely impact of release on those victims and their children. Although I absolutely believe that the judicial member and the psychiatrist are welcome to add their expertise, I am not convinced that they always understand the dynamics of domestic abuse.

The Convener

The Scottish ministers have the ability to add to the list by regulations. Do you have any concerns about it being done in that way?

Pete White

Is that in relation to—

The Convener

Electronic monitoring, yes.

Pete White

It is fair to allow for the fact that technology will move faster than Government. It is possible that new developments will come along and things will be identified as useful and appropriate in relation to monitoring. It would not be good if that was held back by parliamentary process.

The Convener

Okay. That is helpful.

In its written submission, Community Justice Scotland is strident on the use of the terms “offender” and “ex-offender”. Can I have the panel’s views on that?

Pete White

On 1 May 2015, the Scottish Government agreed never to use the terms “ex-offender” or “ex-prisoner” again in cabinet secretaries’ and ministers’ speeches and publications, and that decision has been honoured by cabinet secretaries, ministers and other politicians and civil servants. When somebody has been found guilty of an offence, they are no longer an offender. They are either a prisoner or someone who is serving a community-based sentence. The term “offender” holds people back when they are already in the justice system.

When people in prison were surveyed some years ago to find out what term they would be comfortable with, they said, “If I’m not going to be a person, I’m going to be a prisoner”, because they realised that they were people who were being held inside a prison. The way forward is the one that has been put very well by Community Justice Scotland. To label somebody as an “ex-prisoner” or an “offender” when they are already being processed away from the offence back to the situation where they might rejoin society is not helpful.

The Convener

Is there a balance to be struck? Do other panellists have different views, maybe from the victim’s perspective?

Dr Scott

I am slightly uncomfortable with that statement. I guess I would be totally supportive in certain contexts. However, in the context of domestic abuse, in which revictimisation and reoffending is so much more likely than in many other crimes, we suffer from a failure to share information about the background of convicted abusers—that is the phrase that we use—and we need to be very careful that the balance does not underplay the risk that many of them continue to pose to their families and, indeed, to future partners.

Nicola Fraser

In some ways, a lot of victims are tied by the criminal justice system. It could be their first time going through the system, and it uses that terminology all the time. I have never asked a victim what terminology they want to use or how that affects them—most of the time, it would not be repeatable—so I do not know whether it would change anything for victims. We do not work on that side, but I do not feel that it has a massive impact on victims.

Professor Loucks

I think that the terminology is unhelpful, not only because it labels somebody according to the worst thing that they have ever done, but it creates a dichotomy between the offenders and the victims when, often, both have had both experiences.

There is also a lack of recognition in the bill that it is talking about not just people who have been convicted, but people on remand who might not be offenders and might never be convicted. We need to try to be clear about what we are talking about.

The Convener

Thank you all very much. That concludes our questions. We will suspend briefly to allow the witnesses to leave.

12:46 Meeting suspended.  

12:47 On resuming—  

The Convener

Item 2 is our third evidence session on the Management of Offenders (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome Liz Dougan, partner, Brazenall and Orr Solicitors; Leanne McQuillan, president, Edinburgh Bar Association; Dr Louise Brangan, policy and public affairs manager, Howard League Scotland; Douglas Thomson, criminal law committee, Law Society of Scotland; and last, but not least, Dr Hannah Graham, lecturer in criminology, Scottish centre for crime and justice research, University of Stirling.

I thank in particular those who have provided written evidence. As I always say, and as members of the committee always confirm, it is very helpful to have written evidence in advance of our evidence sessions.

We will move straight to questions.

John Finnie (Highlands and Islands) (Green)

To kick off, I have two or three questions for Howard League Scotland. In its submission, Howard League Scotland expressed concern that there could potentially be

“penal expansion rather than reduction”.

The second paragraph of the submission says:

“Fundamental questions and aims of the Bill remain to be clarified. What are the precise underlying penal rationales motivating the expansion of electronic monitoring in Scotland?”

Do you have any notions at all of what those rationales might be?

Dr Louise Brangan (Howard League Scotland)

Howard League Scotland is very pleased to have been invited to this meeting to speak to the bill, given that it is such a considerable piece of legislation.

We welcome the extension of electronic monitoring, of course, and we are not opposed to its refinement and the introduction of GPS—global positioning system—but one concern that we have raised is about the opaqueness around why we might want those expansions. As we have said, if that is to do with institutional issues such as our staggeringly high imprisonment rate and our courts’ huge and consistent reliance on the use of imprisonment, which has remained steadfast in the past 20 years, that could be an effective and important means to reduce those things. That is important.

We talk about Scotland’s incredibly high imprisonment rate. I sometimes get concerned about that turn of phrase because it is almost threadbare from overuse, but we should remain alarmed that, despite lots of progressive moves on Scottish penal policy, our per capita imprisonment rates remain among the highest in western Europe. If we can use GPS electronic monitoring to address that by releasing people who would otherwise be sent to prison on remand, increasing the number of people on temporary release, and encouraging the courts to use it as an alternative to a carceral sanction, it is an exciting and promising platform. However, if it is to do with increasing public protection from the risk of individuals and increasing surveillance in the community—if it is just used as a technological fix—we are concerned that the net widening and uptariffing will result in an expansion in the number of people in the deeper end of the criminal justice system.

Over the past 10 to 15 years, community sentences in Scotland have expanded, which is to be welcomed, but that has been at the expense of fines. The rate at which the courts use prison sentences has not changed at all; it has remained between 13 and 15 per cent. Unless the bill explicitly says that it is about reducing the imprisonment of target groups such as long-term prisoners and remand prisoners, we are not certain that it will achieve more than its surveillance aims when it comes to tackling imprisonment rates. Therefore, more people will be drummed into the criminal justice system, fewer people will get a fine, which is a less intrusive punishment, more people will get something more onerous and intrusive, such as GPS, and there will be more community sanctions while the prison system and the prison rates remain unchanged. Are we trying to reduce our imprisonment rates and create a more humane penal system? Will we be able to use the bill to reduce our use of the most severe sanction, which is imprisonment?

John Finnie

In your statement to the committee, you mentioned evidence a few times, and my question is about two bits. The first relates to an evaluation in 2000 of trials in which, in the majority of cases, electronic monitoring did not displace a custodial sentence. About a further bit of evidence, you say:

“There must be a way to monitor and make public the number of people who get”

temporary release

“with and without a tag, and track how that fluctuates in the future, namely: how many ... people are receiving TR?”

You feel that those are relevant to the topic that we are discussing. Will you comment on them?

Dr Brangan

The research from 2000 looked at trials of community sanctions. Without looking at the court practices, it found that 40 per cent of the people who received the alternative sanction would have likely received a prison sentence, which means that we are not using it effectively enough to reduce prison numbers by using it as an alternative to divert people away from imprisonment. That is a serious issue, but the research reveals it and we can address it with the bill and explicitly state its importance and say that we want to increase those numbers.

Ireland has historically had low imprisonment rates because of the high use of temporary release. Scotland could easily reduce the number of people in prison by expanding the use of temporary release. Electronic monitoring with GPS is an important avenue as a release valve, and it also allows for public protection. Those surveillance measures can support public reassurance about releasing people from prison earlier or on and off, using home leave so that people leave prison intermittently or return to prison intermittently.

We need data to monitor how those patterns change. How will we know whether the number of people who receive electronic monitoring is increasing or stabilising? We will need lots of public data about that, and lots of criminologists, researchers, non-governmental organisations and third sector groups are eager to get their hands on such information.

We also need to monitor the number of people who receive temporary release with electronic monitoring and GPS as well as with community sanctions and other support measures. We have to ensure that we do not use temporary release only with electronic monitoring, which would make temporary release more punitive in some ways, because it would be more onerous and tightly controlled. We would deny people the independence, autonomy and trust that temporary release is meant to garner by engagement between the system and the person who has been imprisoned. We need data to be able to track changes over time, to see whether, if more people used electronic monitoring or were subject to electronic monitoring, the number of people who were released from prison temporarily significantly increased. That data is incredibly important, and it is important to make it public, so that it is not just for the Howard League and the Government—lots of people are interested in those issues.

Daniel Johnson (Edinburgh Southern) (Lab)

I hear the arguments that you have made for the bill to deal explicitly with those issues. Why do you argue for that rather than for them to be dealt with as matters of policy? Would you like to include simply data in the bill, or would you like other things in the bill to ensure that it gets more people outside of prison rather than just putting additional measures on the people who would already be out?

Dr Brangan

Those issues would certainly be matters for policy—I do not want to draw a line and say that they are mainly to do with the bill. I get the impression that part of the motivation behind the bill is that people are aware that Scotland’s imprisonment rates are high and there is an appetite now to address that, with public support, but there is a wish not to create too many media headlines. That aim is therefore slightly less explicit, and it could be more centralised to say, “We want to reduce the imprisonment rate so that we can tackle remands.” Remand is not dealt with in the bill. We could tackle the use of temporary release by seeing how many people in prison are on remand and how many of them could be released on temporary release. That might just be a matter for policy, but my point is about getting clarity about whether this is just a technological fix and what the ambition is to make these extensions to the existing community justice system.

The Convener

Although John Finnie started by asking Dr Louise Brangan to give the views of the Howard League, we would like to hear the whole panel’s views, so please add anything else that you would like to say in response to Daniel Johnson’s question.

Liz Dougan (Brazenall and Orr Solicitors)

I agree with the suggestion that it might be helpful to consider remand prisoners for tagging. If someone appears on a summary complaint and has bail refused, they are remanded for a period of up to 40 days for trial. I do not have any statistics, but that probably happens to quite a lot of the remand population, and I would submit that it would be ideal for that group of people to be monitored on a tag. The likelihood is that, even if convicted, they are not going to receive a custodial sentence, so why should they be on remand for that first period?

Dr Hannah Graham (University of Stirling)

The aspect of the bill that refers to introducing electronic monitoring with temporary release on licence is a response to some of the recommendations that were made by the Scottish Government expert working group on electronic monitoring in its final report in 2016. In addition to what Louise Brangan has said, I think that it is about nuancing how it is being used. If, as she has pointed out, it is increasingly used in a risk-averse way, so that prisoners have temporary release that would not otherwise have had electronic monitoring added, there is the prospect of net widening and increased rates of recall at that end of the criminal justice system, and that might not be widely supported.

If electronic monitoring is used to try to increase the number of people who are given temporary release on licence, and for some of the purposes that I believe are referred to in the bill’s policy memorandum—to support reintegrative activities and focus on activities that would lead towards prospects of work, volunteering, education, connection with family and social relationships that would support reintegration and desistance from crime—that could yield some good results in cases that might not otherwise have been granted release. However, there is a need for on-going, skilled and individualised assessment of the person to determine whether temporary release on licence without electronic monitoring is appropriate, whether there might be a reason for that, and what technology is used.

Leanne McQuillan (Edinburgh Bar Association)

The Edinburgh Bar Association included this point in its submission. I definitely see great potential for using electronic monitoring to reduce the remand population. The committee has the statistics. I cannot remember them off the top of my head, but it is certainly true that, of the people who are remanded in custody, a very low percentage ultimately receive a custodial sentence. As the committee knows, the reasons behind remand are entirely different from the sentencing considerations.

We have raised the issue of curfews, and if those were electronically monitored, there would be a huge potential for saving police time and ensuring compliance, as long as it does not just become automatic that, if you are being released on a curfew, you will be electronically monitored—a point that has been raised in a lot of the responses to the consultation. There is always a danger that, if the power is available, the procurator fiscal will ask for it and the sheriff will say, “Yeah, that’s fine.”

The other area where I see good potential is domestic abuse cases, in which an awful lot of people appear from custody because they have breached bail conditions to go back to an address where their partner is residing. If the GPS was able to widen the scope of electronic monitoring to say, “You can’t go to this address,” it would deter people from breaching bail. I do not have the figures, but large numbers of people appear in the custody court because they have breached their bail conditions. That is something that electronic monitoring could really reduce.

10:15  

Daniel Johnson

I want to follow up on something that Hannah Graham just said. Last week, we had an interesting discussion about how, if this approach is going to be successful, people with electronic tags need support. However, that will be possible only if there is sufficient risk assessment and it is provided to the right people, particularly criminal justice social work. Furthermore, if we are going to use electronic monitoring effectively for prisoners on remand, the courts will also need that information.

To what extent is there scope to improve the bill in relation to risk assessment to ensure that both the courts and criminal justice social work have the right information so that they know the requirements of the prisoner and the support that they need? I would be interested to hear what Dr Graham or other members of the panel think about whether that is an avenue that could be explored.

Dr Graham

Electronic monitoring as it currently operates, using radio frequency technology and home curfews, involves a risk assessment, because we need to think about the property that is involved. If we move towards new technologies and the introduction of GPS electronic monitoring, there will be instances where that can be used to support exclusion zones and can also—this might not necessarily be the best use of the technology—support restrictions to a place or a curfew.

There are fairly coherent voices among electronic monitoring researchers saying that, where a person is being restricted to a place and where that place involves other people—such as fellow members of the household, partners and children—no matter what technology is used, it must involve individualised and multifaceted risk assessment. I have conducted research in Scotland on that in relation to current technology. Criminal justice social workers have made that prominent in their conversations on the topic and I am not aware of widespread concerns about the current risk assessment that they use. They are also involved in risk assessments for people leaving prison on home detention curfew.

The current approach involves a fair degree of risk assessment. That information is provided to the authorising agency, whether that is the court, the Scottish Prison Service or the Parole Board for Scotland. I do not know that it is necessary to have a brand new risk assessment framework or tool, but I must emphasise that risk assessment is important and must continue to be done well by helping professionals who are qualified to do it.

The Convener

We will have a line of questioning on risk assessments and on GPS more specifically, so perhaps we can leave that for now. If members have supplementary questions, please can they make sure that those are not points that are going to be raised later on?

Mairi Gougeon (Angus North and Mearns) (SNP)

I have a brief supplementary question in relation to an earlier point. My question is for the Howard League, which said in its written submission:

“Electronic monitoring is unlikely to reduce the prison population.”

The submission cites a study that showed that

“only 40% of those who received a tag would in fact have received a custodial sentence”.

I noticed that that study was from 2000. Do you have any more up-to-date statistics, or is there further on-going research?

Dr Brangan

I do not have any further statistics on that, but I can seek some out and speak to colleagues about it. There are studies going on in England and Wales and in the United States. I chose to cite that particular study to make the point because it was Scotland specific.

Another piece of evidence that I have comes from a Howard League Scotland report that we released earlier in 2018, which shows that the expansion of community penalties in the past 10 years has displaced the fine, rather than the prison sentence.

Prison numbers have dropped moderately in the past few years, which is absolutely to be welcomed. However, the reason why that has happened is that there is less crime. The number of people who are proceeded against by the courts has dropped and the rate at which courts are giving out prison sentences has remained steadfast. Where we see an expansion of community sentences in Scotland, we see a reduction in fines. That is my concern about penal expansion.

It is very hard to say how we can assertively direct electronic monitoring towards addressing the prison population. We can do it at the point of sentence by making judges more confident about the use of electronic monitoring through criminal justice social workers saying that it will be a useful intervention and tactic as part of the suite of measures, but it is also a means of tackling back-end sentencing—remand prisoners. Right now, 15 per cent of the prison population have never been convicted. As Leanne McQuillan said, the majority of those will not go on to receive a prison sentence; whatever crime they are convicted of will not be seen to befit a period of incarceration, but we will already have incarcerated them. That is serious.

The reason why we use remand in that way—and David Strang, Her Majesty’s chief inspector of prisons, regularly and forcefully makes this point—is that we are trying to make sure that people turn up for sentencing in court. The people we most regularly incarcerate who are not found guilty are the poor, the vulnerable, the marginalised and the homeless. That is why electronic monitoring and tagging can help reduce remand. We also need to think about expanding bail services and support. In that way, we would reduce prison numbers using this new measure and also think more holistically about the social supports that are required to prevent the diminution of our justice by using prison sentences against people who have not been found guilty and are not likely to go on to receive a sentence either.

The Convener

That is a wide subject. We have specific questions on some of the areas.

I am conscious that Douglas Thomson has not had an opportunity to say anything. Are you happy to wait for the topic of risk assessment, or is there something you want to add to what we have heard?

Douglas Thomson (Law Society of Scotland)

I note that the bill before us relates only to disposals post-conviction. There has been a great deal of discussion about the position of remand prisoners, but the bill as it is presently drafted and introduced works on the assumption that the person has been convicted. It is the Management of Offenders (Scotland) Bill, and the person is therefore, by definition, an offender. We are perhaps looking at something that is not before the Parliament at this stage.

The Convener

That is a fair point. Obviously, we will be looking at how the bill can potentially be improved, and at stage 2 we will lodge amendments. Whether those amendments would affect the title of the bill and whether they would be within its scope remains to be seen. However, at this stage it would be helpful if the panel could concentrate on what is in the bill. We also want to hear about what is not in it, and we will have questions on that later.

If supplementary questions stray too far, I will cut them out and we will go straight to the substantive questions.

Liam Kerr (North East Scotland) (Con)

Dr Brangan mentioned studies in other countries. Does the panel have any comment about how the bill’s proposals on electronic monitoring compare to approaches in other countries? What are other countries doing that we might copy?

Dr Graham

The Scottish Government’s expert working group on electronic monitoring commissioned me and Gill McIvor, my colleague from the University of Stirling, to do that. There is a 137-page Scottish and international review of the uses of electronic monitoring, and, in recent years, we have done some more work through a European Union-funded comparative research study. That review was the first of its kind in Europe to look at electronic monitoring in Scotland, England and Wales, Germany, Belgium and the Netherlands and to consider the broader literature.

Electronic monitoring is used moderately commonly in a lot of jurisdictions in Europe. I do not want to make a generalisation, but the European literature and practice evidence overall tends to have more constructive outcomes or findings, whereas some of the uses of electronic monitoring in some parts of the United States have more mixed results. That could be strongly influenced by different approaches to criminal justice and punishment in America.

Plenty of other countries use electronic monitoring within community sanctions and measures. The Netherlands, Sweden, Norway, Denmark and several other countries use it within a probation order, for example, and electronic monitoring is led or overseen by their national probation service. There are things that we can learn from that to inform proposals to add electronic monitoring as a potential option within the community payback order. The use of electronic monitoring within a probation or community payback order is moderately widespread in other countries and has not led to particularly concerning results. There are quite high levels of order completion and moderately high levels of compliance where electronic monitoring is involved.

I cannot foresee what might happen in Scotland in the future, but we could expect that, where the electronically monitored order was used proportionately within a community-based sanction, the majority of people would tend to comply with it. The order usually comes with imposed supervision and other forms of support that help people to leave crime behind and address some of the issues that contribute to it.

Liam Kerr

Dr Graham, you have studied what happens in all those other countries. Is it your view that the bill sufficiently distils the essence of what is working in those other countries such that the positive outcomes that you have identified will be at least implied if they do not naturally follow? Or is the bill lacking in some regard?

Dr Graham

The part 1 provisions are broadly coherent with the findings of the Scottish Government’s working group on electronic monitoring, which cited the international evidence quite frequently. I would therefore say that there is broad coherence with the international learnings.

We have some questions about how it might be implemented in practice but, thankfully, it does not appear to be mirroring some of the particularly punitive uses and lessons from the international literature. For example, some people in the US are subject to electronic monitoring for a lifetime in very punitive and disproportionate ways. We are not seeing that reflected in the bill.

I would say that the bill is broadly coherent with European examples. I will raise some questions and critiques about its implementation, but it is broadly coherent with the Council of Europe’s electronic monitoring recommendations and soft law rules on basic thresholds for the use of electronic monitoring in Europe.

Douglas Thomson

I bow to Dr Graham’s greater knowledge of the subject. My understanding from the court system is that, although electronic monitoring is not rarely used—quite often, when considering a custodial sentence in summary proceedings, the courts will ask for a restriction of liberty order assessment—it is not used as much in Scotland as it could be or as much as it is used in a number of other European countries that have gripped the technology with a great deal more enthusiasm.

I have seen examples of courts imposing such orders on people with no fixed address, which is perhaps setting them up to fail. Also, a number of people have been given a restriction of liberty order assessment although the pre-sentence report has revealed details of a dysfunctional family set-up, which is perhaps bound to create a difficulty. However, I am going into specifics.

On the general point about how electronic monitoring works, I think that Scotland could use it much more commonly than it does at present.

Liam Kerr

Why is Scotland not using it? Do we require a legislative fix or a different approach?

Douglas Thomson

I suspect that certain sheriffs are still a little uncertain about the technological advantages of electronic monitoring and that some are uncertain about the extent to which it is seen as a realistic punishment. Requiring somebody to be monitored and be in a certain place has a particularly clear benefit, but it is relatively new and is perhaps not as well understood by sentencers as it might be.

The Convener

John Finnie has a supplementary question.

John Finnie

It is about the GPS system. The term “increased surveillance” is already being used, and there is no doubt that the equipment concerned would be capable of harvesting significant data. Do you have concerns about the retention of, access to or, indeed, potential use of that data? As things stand, it is in the hands of a private company.

Dr Brangan

We briefly addressed that issue in our submission, as it did not seem entirely clear—

The Convener

I am going to stop you there, because what John Finnie asked is actually Jenny Gilruth’s question and is not a supplementary question. We will return to the issue later, because I know that the witnesses will have a lot to say on it. That question has been allocated to Jenny Gilruth.

John Finnie

I beg your pardon, convener. I did not realise that.

The Convener

I realise that the allocation is sometimes not clear.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning, panel. I want to return to a line of questioning that we pursued earlier, which is about assessment and risks. We have heard in previous evidence that, although people are generally supportive of electronic monitoring, there is very much a need for greater support and assessment. I am thinking, in particular, of the evidence that we received from Dr Marsha Scott, last week. She said that electronic monitoring presented Scottish Women’s Aid with a bit of a dilemma, because, although it could offer benefits through the monitoring of perpetrators, if someone on a CPO commits an offence, that does not automatically constitute a breach of the CPO. Can you say a bit about the risk and the support that will be provided?

10:30  

Leanne McQuillan

Currently, when an offender is made the subject of a restriction of liberty order, the equipment is fitted and that is it—no support is provided.

I agree with Douglas Thomson. The courts do not tend to use restriction of liberty orders, for a variety of reasons. One reason is that they feel that, if a person’s liberty is to be restricted, the gut reaction is to send them to prison. In addition, there are concerns about restricting someone’s liberty to a family home where there might be children or difficult relationships. Even people who are on a curfew condition without any electronic monitoring can often be thrown out of the house following a big fall-out. It is difficult to expect a parent, a spouse or a child to live with someone who is restricted to that address. At the moment, when someone is made the subject of such an order, no support is provided.

Understandably, someone can be restricted only for up to 12 hours a day. If they were restricted for up to 24 hours a day, that would be extremely punitive. That means that, if they want to offend, they can offend in the 12 hours of the day for which they are not restricted, so there is not much of a rehabilitation element to a restriction of liberty order. It is very much a punitive sentence that is designed to reduce the prison population, although I am not convinced that it has had that effect.

Rona Mackay

You mentioned children and families. Surely, more support and counselling would need to be provided to children in the event of such methods being used more. Do you agree that more support services will have to be provided?

Liz Dougan

Instead of having stand-alone restriction of liberty orders, it might be better for the restriction of liberty element to be ancillary to a community payback order with a supervision requirement. In that case, there would be an allocated social worker for the person who was the subject of the order. As part of their remit, the social worker could ask questions of the people living in the home and various family members about how the arrangement was working.

At present, there is an opportunity for the local authority monitoring services to submit a review of a community payback order to the court if the order has run its course or it believes that the order is no longer required or is not working in some way—for example, if the person who is the subject of the order is not getting as much out of it as had initially been envisaged. If the restriction of liberty element were factored into a community payback order with a supervising officer, they could fulfil that role. That is already in the framework that is in place.

Douglas Thomson

I endorse that view entirely. In our submission, the Law Society states:

“Electronic monitoring can never be a ‘goal in itself’ but always a ‘way to reach other goals’ such as changing behaviour and protecting victims.”

The monitoring is important, but it must be part of the process of looking at the behaviour of the offender, what caused it and what can be done to manage risk in the future. The monitoring allows the state to know what the offender is doing and, more important, what they are not doing; however, as a stand-alone measure, it simply puts somebody in a particular place for a number of weeks or months. If we do not look at the whole picture of the offender—including their past behaviour and how they might behave in the future—it will be of no benefit to society.

Rona Mackay

Did I interpret Dr Marsha Scott’s evidence correctly as being that, in the case of domestic abuse, if a perpetrator offends again while they are on a monitor, that is not a breach of the order? A high proportion of domestic abuse perpetrators reoffend constantly, which is the dilemma. Is that correct?

Douglas Thomson

It is not automatic. My experience is that, when somebody who is subject to an order is accused of a fresh offence, it is rare for the Crown not to take proceedings and for the court not to take some fairly condign steps. Technically, however, it is not an automatic requirement. One would assume that, if the police force and the procurator fiscal service became aware that somebody had breached their restriction of liberty order, they would submit it as breach proceedings. That should be done with a degree of urgency in all cases.

The Convener

I noticed that Douglas Thomson said that electronic monitoring should not extend beyond the sheriff court to include justice of the peace courts. Why?

Douglas Thomson

In general, JP courts tend not to deal with high-tariff offences: domestic abuse is always prosecuted in the sheriff court, for example. It is relatively rare these days for cases that are prosecuted in JP courts to be on matters that would attract a custodial sentence, and electronic monitoring is generally an alternative to that.

Practice might vary from court to court, but in the court in which I practise, it is extremely rare for an offence that is prosecuted in a JP court to be of a level at which one would likely feel that the appropriate penalty would require restriction of a person’s liberty.

The Convener

I was thinking that you were talking about this in relation to community payback orders, which sheriff and JP courts can use. Why would there be a difference? Is it about the level of offences that attract CPOs?

Douglas Thomson

As a direct alternative to a custodial sentence—although a level 1 CPO is an alternative to a fine when the person cannot pay—a community payback order is imposed when the court considers that the matter is worthy of imprisonment. Given the current restriction on short sentences, that generally means that the court is thinking of a sentence that would be measured in months. As an alternative to that, the court will commonly impose a package of measures as part of a community payback order that might include a restriction of liberty order and supervision, or restriction of liberty and unpaid work. In my experience, the sort of offence that attracts that level of penalty does not generally come into justice of the peace courts.

The Convener

Are you saying that electronic monitoring is not a stand-alone measure in JP courts?

Douglas Thomson

I do not think that the Law Society’s view is that we should say that it should never be considered. We are simply questioning whether there is a real benefit to allowing it as a potential penalty—

The Convener

That strikes me as curious. Perhaps you would like to come back with more rationale when you have had more time to think about it after the evidence session.

Douglas Thomson

Certainly. I am not aware of there being any particular pressure from the Magistrates Association to have the power. It might be that there is, but not that the Law Society is aware of.

The Convener

I wonder whether it would help the offender to complete their sentence. That is part of the rationale for introducing electronic monitoring.

Douglas Thomson

It might do, in some situations. I am thinking about my practice in the justice of the peace court and how often the court would feel that that is a weapon in its armoury that it would find useful.

Liam McArthur (Orkney Islands) (LD)

We will park Mr Thomson’s earlier comment about whether, in the context of a bill on management of offenders, that would be competent. I want to explore whether the panellists consider that it would be beneficial to have electronic monitoring as a bail condition. If that was the case, would that need to be explicitly stated in the bill, and would it be solely where remand was the alternative, as opposed to applying to individuals who would have been bailed in any event?

Leanne McQuillan

The two areas where electronic monitoring could really assist are remand prisoners and—this is an area that I do not know too much about—people serving custodial sentences who are on early release. I have personal questions about how electronic monitoring would work in conjunction with a CPO. That is another issue, but I am not quite sure how, in practice, an extension of electronic monitoring would help someone to complete a CPO. However, as far as remand is concerned, 15 per cent of the prison population are remand prisoners, and the measure would be a relatively easy way to reduce the number of people who are in custody and who do not need to be there.

As has been mentioned, we would have to be very careful that the Crown did not automatically ask that someone be electronically monitored in a situation in which they would not normally be. If a sheriff has remand at the front of his mind, the fallback could be a curfew with electronic monitoring. At the moment, the police monitor curfews by randomly attending a house. Banging on a door in the middle of the night can disrupt children and families. I am sure that the police have better things to do. Therefore, electronically monitoring when a curfew is considered to be appropriate has real potential, if the bill’s scope was widened in that way.

Liam McArthur

You do not, however, see the need to express that explicitly—with whatever conditions—in the bill.

Leanne McQuillan

The measure would have to be included in the bill. The bill does not cover remand—it covers electronic monitoring in conjunction with sentence and people being released from prison post-conviction. The bill would have to address the issue specifically. Perhaps the Government is missing an opportunity by not doing that.

Liz Dougan

I agree totally. Such provision is missing from the bill, so unless it is written into the bill it cannot be implemented, because electronic monitoring would continue to be policed by the police service rather than handed over to, for example, G4S.

Liam McArthur

Is there a need to express that in the bill, with the caveat that it is solely for people who would otherwise be considered for remand?

Leanne McQuillan

Yes.

Liz Dougan

Yes.

Liam McArthur

I see others nodding their heads.

Dr Brangan

I have already expressed the Howard League’s view, and I defer to the legal expertise on the panel. However, including such provision in the bill would create a legal obligation by which we would reduce our prison population by tackling the people who have not been convicted. We could use electronic monitoring for that purpose, so this marks an exciting moment at which to do something productive and positive.

Liam McArthur

Now that putting such a measure in a bill that is about management of offenders has been posited, how do we get around that challenge, Mr Thompson?

Douglas Thomson

That would require either a fresh bill or a fresh section in the bill. I suspect that, given how the bill is framed and that it is the Management of Offenders (Scotland) Bill, the appropriate way forward would be to amend the Criminal Procedure (Scotland) Act 1995, rather than to have a short, one or two section, separate bill. Section 1 (1) begins:

“When disposing of a case”.

Therefore, the bill’s starting point is the assumption that the case has been disposed of post-conviction. To include remand in the bill would require a fair bit of drafting skill. It might be more practical to have a separate short bill.

Liam McArthur

Dr Graham was involved in a lot of the preamble to the bill. Is the bill’s title being “Management of Offenders (Scotland) Bill” an accident, or was it a deliberate attempt to avoid including people who are under bail conditions?

10:45  

Dr Graham

In some ways, the Scottish Government is best positioned to say whether that was accidental or intentional.

Liam McArthur

Did you and colleagues address that as part of your work on use of electronic monitoring?

Dr Graham

In the research that we have done, everyone has been careful to use the term “monitored person”, so we are not running round saying “offender”. In conducting interviews and in doing observations, people said “monitored person”. The committee has already heard evidence to the effect that that happens more broadly in community justice for people on whom a conviction has been imposed. The term “offender” is contentious in Scotland because of the Scottish Government’s position, or commitment, not to use it. The language would need to be adjusted in considering what Douglas Thomson has just spoken about, because we cannot use that language more broadly with people who have not been convicted.

Liam McArthur

We will come to terminology in a minute, so I will leave it there.

The Convener

Would, for example, a person who was in court for a number of charges, two of which had been proved and the court was continuing with the other charges, be released and bailed? Is that a situation in which bail conditions could include electronic monitoring? Might that be within the scope of the bill, and is it something that we will have to look at?

Douglas Thomson

When there is an outstanding trial in the same matter—if somebody has, for example, pled guilty to two charges and the Crown still wants to proceed on other charges—the court cannot pass sentence until the trial has concluded.

The Convener

If that person has been found guilty, could they then come within the scope of the bill? Although sentence had not been passed, they would be deemed to be an offender—in inverted commas.

Douglas Thomson

The central point is that the bill starts from the proposition that the court is disposing of the case. The court will not dispose of the case until guilt on all matters upon which the Crown seeks a conviction has been determined, so I do not think that that would get round the problem.

The Convener

Right. I wonder whether the terminology could be changed.

Leanne McQuillan

I was going to say the same. I do not think that that would occur in practice. If someone pleads guilty to two charges and the Crown does not accept that and wants to proceed to trial on other charges, that person is still an untried person, whether they are a prisoner or whatever, so the court would not be considering sentencing. I do not think that that would work, within the scope of the bill.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I want to go back to something that Leanne McQuillan said about GPS. She said that it would be beneficial, and that it would encourage people not to visit certain areas while they had an electronic tag. In last week’s evidence, we heard from Social Work Scotland and Community Justice Scotland, which were also pretty positive about use of GPS. However, Dr Brangan’s submission says that when people are deprived of

“access to large areas of public space, like city centres, it sends a clear statement that they do not ... deserve equal membership of Scottish society.”

We also heard last week from Scottish Women’s Aid, which was generally quite positive about use of GPS. However, it also pointed out an American study that had been conducted with victims of domestic abuse, who had felt quite anxious about use of GPS because they could see the whereabouts of the person who had attacked them, for example, which caused them stress. Does the panel think that use of GPS lends itself more to some crimes than to others?

Dr Brangan

Howard League Scotland is not opposed to the idea of exclusion zones, if we are talking about something like domestic violence, in which GPS can be used in a sensible and right-minded way. Our central concern is to do with the issue of “certain crimes”. If a criminal has had an assessment by a social worker, that will allow for the various circumstances of the case to be deliberated over and implemented in use of an exclusion zone, rather than its being done on a crime-by-crime basis. For something like domestic violence, the use of GPS certainly has clear benefits in terms of the sense of security that the victim can achieve.

Our concern is about the enthusiasm for the idea of exclusion zones in the run up to the bill, which suggested that whole city centres could be created as safe zones from which we would exclude offenders. The idea of being a citizen in Scotland would be diminished if some people were not allowed into mainstream public spaces and had to stay in their zones and communities. It is sensible and right minded to apply that to certain areas, such as certain streets or houses or a person’s workplace, but the ideas of citizenship, belonging and reintegration require us to be careful. We need to set a specific maximum spatial size or distance—in metres or kilometres—and a maximum number of areas that can become exclusion zones. We have to protect citizenship and the reintegration aims of penal policy.

Dr Graham

The type of GPS monitoring that Jenny Gilruth refers to is technically called bilateral monitoring. In other countries, the system is used not only to monitor an offender but is used with electronically monitored restraining orders—which, again, gets us into different parts of the criminal justice process and different language. Under that approach, which has been used in the US and is commonly used in Spain and Portugal, a victim who gives their informed consent has the opportunity to carry a device or have an app that notifies them. In London, the Metropolitan Police is considering using that system to seek to prevent stalking. Victims can have a device and in some cases they can even consent to wearing one, although I do not know how common that is, or they can carry one or have some way of getting a notification or information.

The responses of victims of crime who have taken part in those schemes have been mixed, because they are a diverse group. There is modest evidence to suggest that the approach has been moderately positive where victims have been adequately briefed that electronic monitoring cannot stop a person in their tracks—it cannot actually stop a crime, although it can give advance notification to victims and/or authorities and monitoring companies. Where that briefing has happened, there has been some cautiously optimistic victim feedback that the system is helpful, particularly where there is a moderate risk of harm.

However, some people have raised legitimate concerns. For example, if an exclusion zone is round a victim’s house, it might be reasonable for them to think that they need to stay at home, so that they will know if the person comes near. The same might apply to the victim’s workplace or a child’s school.

There is an issue about how we cope with more dynamic movement. That is where the option of a victim carrying a device or having a way of knowing their location comes in. There can be concerns about the impact on the victim, but I emphasise the need for informed consent in participating, and the ability for the victim to withdraw at any point, if they need or want to, because we should not impose on victims things that have a detrimental effect on them. In Spain, Portugal and the US, the studies have been moderately optimistic that the approach can lead to some victim satisfaction, and that the information is helpful in alerting them and authorities.

On the point about GPS exclusion zones potentially being applied to entire Scottish cities, the news headline on that caught our attention, too. The principle of proportionality is really important. If a sentencer were to impose an exclusion zone around an entire city in Scotland, that would raise questions as to why such a wide-ranging exclusion zone was being imposed and was not being tailored, and what supports, as well as surveillance or controls, could be put in place to ensure that we were not displacing the problems that we were seeking to address. If the concern about them was so great that a person was not allowed in an entire city, we would need to think about displacement—whether that person is taking their behaviours and propensities elsewhere. I therefore caution against restricting people from going into entire cities. Exclusion zones are usually used where there has been a strong propensity to offend, and in very tailored approaches when there is a need to keep someone away from a place for a period.

Leanne McQuillan

When I talk about the potential use of electronic monitoring to keep a person away from a place, I am referring, for example, to a house that they have been asked to leave because of domestic violence and they have had to provide an alternative address. At the moment, there is just a bail condition and people can breach it, but if that was electronically monitored, that might deter the person on bail and give a bit of comfort to the complainer.

As for exclusion zones, it is not rare for the court in Edinburgh to grant people bail with the special condition that they must not enter the city-centre exclusion zone. The accused is given a map on which the area that they are not allowed to go is drawn in red. Some sheriffs do not like that condition, but when it is imposed, it is usually for people who have been accused of shoplifting or of causing trouble in the middle of the night in city-centre bars. As Dr Brangan said, that moves people away but, if they are going to offend, I am sure that they can find somewhere else to do so.

I have seen a bail condition that the accused is not to enter Edinburgh or not to enter Scotland—that is usually for a person who is from outwith Scotland. Such conditions can be imposed for months and months. They are dubious, and I would be concerned about extending that approach to electronic monitoring.

Jenny Gilruth

There are limitations on the use of the technology. Last week, we heard about the effective use of GPS in rural areas being limited by reception there. In her submission, Dr Brangan highlighted another limitation, which concerns how the general data protection regulation will interact with data protection rules and GPS monitoring. The submission says:

“With GDPR reframing future organisational behaviour around privacy, what are the precise data protection implications of expanded”

electronic monitoring,

“including GPS?”

I am really interested in the panel’s views on how the two areas will interact.

Dr Brangan

We raised the question because there is no organisation that is not in a frightful state of GDPR anxiety. Everywhere that I go for meetings, I hear about other meetings at which people are saying, “Have you had your adviser in yet? What are we going to do?” That has made me think about how electronic monitoring involves some of the most personal and intimate data, which could include data from transdermal alcohol monitoring.

I do not want to create an air of suspicion, but the new parameters of data protection raise the questions of who will have the data, how long they will have it for and who else will have access to it—for example, will it be right and appropriate to share data across the criminal justice system? I am not suggesting that we have all the answers to that, but that should be at the forefront of our thinking if we want to expand the use of the technology. We must keep it in line with basic data protection rights and think about vulnerable people and the detailed data that we will gather from people.

Dr Graham

I note the submission from the Information Commissioner’s Office. During some consultation activities, the Information Commissioner’s Office made statements about being mindful of the privacy principles and privacy legislation and about keeping an eye on the uses of GPS electronic monitoring in other jurisdictions. In England and Wales, electronic monitoring has been used on what is called a voluntary basis for some people who have prolific offence histories but who are not currently subject to a sanction. That use of electronic monitoring was police force led and was not regulated.

Research has shown some uses of the information, but it has been suggested that GPS electronic monitoring data could be of keen interest to police forces in other countries for law enforcement and criminal investigation activities. The European ethical standards caution that privacy needs to be upheld and that we need to question robustly the potential use of GPS electronic monitoring data not only for monitoring but for when people say, “Oh—a crime has been committed. Should we open a map and see who was there?”

The Information Commissioner’s Office has warned about some serious considerations; I believe that it warned against fishing exercises. At the moment, the Scottish Government owns electronic monitoring data, so it is the data controller, which means that requests go to it.

11:00  

This is not to cast doubt on whether police should have some access or reasonable access to the information, but my understanding is that at the moment, they would need to know the broad parameters of who and what they were looking for. In other jurisdictions, the police might take the approach of opening up a map to see who was about, although some people would say, “I can prove that I wasn’t there, and you can check.”

There are some privacy concerns about how the privacy legislation would fit with electronic monitoring if the data was used for purposes other than monitoring. We have encouraged the Scottish Government to continue to be the owner of the data or the data controller so that access to the data is subject to vetting or checks and a decision-making process.

Douglas Thomson

I suspect that slightly different considerations might apply where someone is accused of and disputes breaching a restriction of liberty order assessment or similar, and that matter goes before the court. The questions of who retains the data and for what period will be different, because there may be circumstances in which the precise circumstances of that breach will become controversial. It is not as straightforward when the data is being used in connection with the latest breach.

I am not saying that I have the answer, but that is something that has to be considered.

The Convener

That is helpful. Jenny Gilruth mentioned the rural aspect. Liz Dougan may want to comment on that, given that her practice is in Dumfries and Galloway.

Liz Dougan

We do not keep any records on who is subject to a restriction of liberty order and electronic monitoring, but I contacted G4S and I spoke to the research and development officer. She has produced monthly statistics for April 2017 to April 2018 for the whole of Dumfries and Galloway. You could perhaps take Dumfries and Galloway as an example of a typical rural area. I do not think that I have enough copies of the statistics to give a copy to everybody—

The Convener

The clerks will distribute copies after the meeting, so do not worry about that.

Liz Dougan

There is not a high uptake of electronic monitoring. I think that there needs to be a bit of education for sheriffs to encourage them to consider it as an option. There also needs to be more education of social workers so that when they are doing a report for sentence, they consider electronic monitoring as an option. There probably also needs to be more education of defence solicitors to stress that we should be asking for that option at the point of adjournment for sentence. In our area, we often find that if the sheriff does not specifically ask for a criminal justice social work report and a restriction of liberty order assessment, the report that comes back will be silent on restriction of liberty. In April 2018, only four persons were being electronically monitored in the whole of Dumfries and Galloway.

Liam McArthur

I wonder whether the reticence about using electronic monitoring in remote or rural areas is always a reflection of the technology reach or whether it is partly a reflection of the potentially longer response times to breaches, which could mean that the risk assessment of its operation uses a different calculation from that used in more urban areas.

Liz Dougan

That may be correct. The officer whom I spoke to advised me that G4S does not have any permanent staff based in Dumfries and Galloway. For the fitting of the equipment, G4S sends someone from Glasgow or Edinburgh. From Glasgow, it takes about an hour and a half to get to Dumfries, and from Edinburgh, depending on the traffic, it takes up to about two and a half hours. The same would apply for any alleged breach.

The officer indicated that G4S has had no difficulties installing the equipment anywhere, even in the most rural areas. Currently, it works on radio waves, I think. If there is no telephone system, G4S just contacts BT and it will connect one. G4S advises that it has had no difficulties with installing the equipment and monitoring; it is just that it does not have a lot of people being monitored.

Liam McArthur

The Government officials said that the contract will be up for renewal in due course, and that the difficulty with establishing the likely costs and usage is partly a reflection of that. Given what you have established in Dumfries and Galloway, is it your expectation that any new contract needs to operate not only from a Glasgow or Edinburgh base, for the reasons that you have identified to do with the distances involved in getting to places such as Dumfries and Galloway? As the member for Orkney, I suggest that the times involved might be even greater.

Liz Dougan

I suppose that, when the contract is put out for tender, it will have to be explained that there is expected to be an uptake of such orders and that the company that wins the contract will be required to have a permanent base in the more rural areas, or at least to have someone stationed there for the majority of the time for installation and monitoring purposes.

John Finnie

I do not know whether to be extremely concerned or just a bit concerned about the ease with which you acquired information from G4S. I would have thought that that information should not be readily available over the phone. That is not to cast any doubt on you.

Liz Dougan

Actually, the statistics are published annually and they obviously do not include names. The figures that I just mentioned will go into the report next year. The most up-to-date published statistical bulletin runs from 1 January 2016 to 31 December 2016, and that is readily available—you can look it up on the website and print it off

. It has a section that shows the number of orders received during the period by geographical area. I have a copy of it, although only one.

The Convener

We would be grateful to receive that, if you could hand it to the clerks.

Liz Dougan

It says that the highest uptake was in Glasgow, which is understandable. For the year from 1 January 2016 to 31 December 2016, there were 467 orders there. Interestingly, the next highest was Kilmarnock, with 244. Dumfries came in at 32, but Stranraer is detailed separately, and it had 11, so the total for the whole of Dumfries and Galloway for that year was 43.

John Finnie

I do not doubt that we will pick up on those statistics. It is reassuring to hear that they are available.

Does the panel have concerns about a private company retaining data? There is a lot of understandable concern about data and the potential use that it could be put to. I hear what Dr Graham said about the Scottish Government, but the approach seems entirely out of kilter. I would have thought that the legal profession, the statutory bodies and criminal justice social work would have led on the issue, rather than a commercial concern.

Leanne McQuillan

I suppose that it depends. At the moment, the company holds data that relates to someone who is generally restricted to their house.

John Finnie

I was referring more to the use of GPS and the additional information that would come with that.

Leanne McQuillan

It depends on what statistics are held. It would be very concerning if a private company held details on a person’s alcohol and drug use. Robust measures would have to be in place to ensure that such matters were dealt with properly.

Dr Graham

I agree. That touches on a broader discussion that is worth having about whether we want the privatised model that is currently in place in Scotland and has been in place in England and Wales or whether to look at other approaches. That is a much bigger question than that of considering the bill. Electronic monitoring has been done with moderate success and proportionality in places such as the Netherlands, Norway, Sweden and Denmark with a public service-led approach. My understanding is that the only involvement of the private sector might be in procuring the product but, after that, the approach is almost fully public service led—it is led by the probation service, which is the equivalent of our criminal justice social work. There are some really good questions to be asked in that regard.

The Convener

I have a question about compliance and enforcement. I think that there is a general feeling that, if electronic monitoring is to be successful, breaches have to be handled effectively. Is the bill clear enough as to what the consequences of a breach will be? Clearly, there is a balance to be struck between supporting desistance for the offender and a robust response to help to reassure the victim.

Dr Graham

There is a balance to be struck between what can be achieved in the bill and leaving some of the decision making to sentencers. That is about how much the bill confines sentencers or tells them how to make decisions and sets parameters around that.

There is a difference between a breach of an order and things that are considered violations and come to the notice of the authorising agencies but that may not mean a breach. Currently, with restriction of liberty orders and home detention curfews, which are the two most commonly electronically monitored orders in Scotland, we have moderately high order completion rates. We are not seeing drastic numbers of breaches, recalls or revocations, but that does not mean that there have not been violations along the way. For example, someone might be late getting home and get phone calls about that, or there might be a strap tamper alert when someone has touched or sought to remove a device in a way that results in the device telling the monitoring organisation.

It is about calibrating expectations on what will happen in the event of breach. At the moment, a restricted movement requirement using electronic monitoring can be imposed if someone is in breach of or is non-compliant with a community payback order, but there is a move to use electronic monitoring more widely with community payback orders. That is where it would be useful to complement the technology with a supervising officer who has the ability to inform breach decision making and to consider the human circumstances. I would not want to see order completion rates significantly falling and breach and revocation rates rising because of arbitrary decisions about technology, as that could lead to more people before the courts if not more people potentially being returned to prison, depending on the modality in which the system is used.

The conversation needs to be had, but there is variation in decision makers across the country. Some will act a certain way and others will leave notifications for a while—they will know about them but not say that it is a breach. There is a balance to be struck in relation to what the bill can achieve and how decision makers such as sentencers actually implement it, because they are not always favourable to too much incursion on their decision making and professional discretion. I defer to those who spend more time in the courts, but breach decision making is still just that: it is a decision on an individual basis.

The Convener

To turn that around, is it important that breaches are dealt with effectively? Will electronic monitoring not work so well if it is seen that breaches are not dealt with effectively?

Douglas Thomson

It is presumed in section 14 that evidence will be

“given by way of a document”

containing certain information, and that the document will in effect be self-proving. Obviously, it could be challenged by the offender, but the document itself would be the evidence of the breach.

In a past life, I was a member of the Parole Board for Scotland. When electronic monitoring of offenders was introduced as part of release conditions, we quickly became aware that the quality of the information that was being given to the panel that considered breaches under electronic monitoring was not of a uniformly high standard.

11:15  

The bill says that evidence may be given in the form of a statement, but a statement is only as good as the information that is put into it. If somebody said that they did not commit the breach or that the breach had an explanation that was not in the document, some form of hearing would have to be built into the system, so the case would go back to the courts.

I recollect that the quality of the information to the Parole Board improved after a time, but it takes a bit of work for people to learn how to produce such information, and it is important, because the breach of an order commonly results in somebody going to prison.

Leanne McQuillan

Dealing with a breach quickly is also important. Dr Graham mentioned restriction of liberty orders. A restriction of liberty order can be imposed with a CPO, but those orders do not necessarily marry together well. If a restriction of liberty order is imposed to stand alone, any infringements of it are monitored by G4S. If someone was five minutes late home, they might get a phone call from G4S to ask them where they had been. If someone had a lot of small infringements, G4S would decide on sending a report to the sheriff clerk’s office that resulted in the order being returned to court. If the person disappeared or took the equipment off, that would be dealt with more quickly. However, the matter would still have to go through the sheriff clerk’s office and be processed.

I will describe the recent experience of a client of mine who has multiple issues. He was recently made the subject of a restriction of liberty order at temporary accommodation. Those at the temporary accommodation said that he broke every rule there, so he had to be asked to leave. He told a support worker that he was no longer at that address, but she had nothing to do with the court system, so the equipment lay for weeks in the temporary accommodation. If the situation had been dealt with more effectively, the equipment could have been moved. My client moved about three months ago, but the matter has only now come to court. Such an approach is not effective.

It would also be helpful for the judgment on the breach to be made not just by G4S but by someone who is more aware of the person’s particular circumstances.

Maurice Corry (West Scotland) (Con)

Mr Thomson said that electronic monitoring is part of the solution. Given your comments, do you feel that the bill provides sufficient direction on how electronic monitoring should be used in practice, such as in tandem with other measures?

Douglas Thomson

The issue is very much for sentencers. In our submission, we drew attention to the fact that a lot of that will be more for the Judicial Institute for Scotland than for the bill. By its nature, the bill creates something that will operate across the country in sentencing in all fora for which it is competent. How that will operate in practice will be for individual sentencers who are dealing with individual cases. We created the Judicial Institute to deal with such matters, and we provide training for sentencers on electronic monitoring because we are looking to increase its use.

Courts must be aware that there is a genuine and useful purpose of electronic monitoring and that the idea behind it is that it will protect the public more and reduce the risk of reoffending. It is not for the Law Society to direct sentencers on when and how they should use electronic monitoring. We are aware that, once the bill becomes an act, the Judicial Institute will engage on the matter and will issue guidance to sentencers.

Maurice Corry

Should the matters that we have discussed be set out more clearly in the bill or in statutory guidance that goes along with it?

Douglas Thomson

Section 1, which starts the monitoring process, is clear enough to be understood by anybody who is sentencing. The question is how electronic monitoring will be used in practice. I see nothing in the bill that is a difficulty to the Law Society.

Maurice Corry

That is fine, but what about giving sheriffs an understanding of how the bill is to be implemented?

Douglas Thomson

Implementation is a matter for the individual sentencer. Nothing in the bill creates difficulties for a sentencer.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I have a number of questions about part 2, which is on the disclosure of convictions. The submissions from Leanne McQuillan and Douglas Thomson make the practical point that the bill will make arrangements easier for everyone—for laypeople and those who are involved in the system—to understand. Will you elaborate on that? Douglas Thomson is nodding.

Douglas Thomson

The bill replaces and amends provisions in the Rehabilitation of Offenders Act 1974, which is not the easiest piece of legislation to navigate. The bill is a considerable improvement. We have observations to make about how it deals with road traffic matters but, in the round, it will create more clarity.

However, we suggest adding a glossary of terms in a schedule to it. Our submission draws attention to the fact that a great many people do not understand the difference between admonition and absolute discharge or what their implications are. Although no penalty is imposed in either case, each outcome has different consequences. In road traffic matters, legislation could make clear the differences between endorsement and disqualification, as the terminology might not be understood by those who are trying to work out how the bill will affect them in the future.

It is important that the public understand the new measures, because they deal with a wide range of sentences—we have covered a considerable number of different sentencing orders this morning. The public need to know exactly where those fit in and where the bill deals with them. Going through the new provisions to see how they will work in practice is a slightly easier exercise, although it is still not easy.

Ben Macpherson

Thank you for that constructive suggestion.

Leanne McQuillan’s submission says that clients find the current legislation difficult to understand and that the bill is an improvement.

Leanne McQuillan

The bill is a huge improvement, because I understand it, whereas I do not understand the 1974 act. Clients often ask when their conviction will become spent, although dealing with that is not part of our day-to-day job. We cannot give them an easy answer; we have to look up the position. Therefore, the clarity is very welcome.

When I looked again at the provisions yesterday, my only concern was about admonition and absolute discharge. My concern is not about the terminology but about the proposal to have no disclosure period for absolute discharge and admonition. People are routinely admonished for what the public would think are quite serious offences, such as assaults that involve injury. That usually happens after a period of good behaviour or if a sheriff has become aware of particular circumstances—I am sure that admonitions are all given for good reasons.

In road traffic cases, people are never admonished for speeding or for driving without insurance—they always get a financial penalty. Some employers might be less concerned about someone who drove once without insurance than about someone who was admonished for assaulting a person in a bar or being involved in an offence of dishonesty. The disclosure certificate could show that someone was fined an amount of money but make it clear that that was for a road traffic conviction. However, I am not convinced that an admonition should automatically be put in the same category as an absolute discharge, which is exceptional. I totally agree with the proposal to have no disclosure period for an absolute discharge, but I am not so sure about an admonition.

Ben Macpherson

I will come back to the terminology in the 1974 act shortly, but first I will talk about attitudes to previous convictions. The bill reduces the length of time that must pass before most convictions will be treated as spent. It also extends the range of custodial sentences that the provisions cover. As we evaluate the bill, we are asking ourselves whether the proposals will achieve an appropriate balance of those aspects.

Dr Louise Brangan’s submission says:

“The amendments still allow for disclosure of spent convictions”

and that

“This Bill allows the continued demand for lifelong disclosure.”

What are your concerns about that?

Dr Brangan

We welcome the reduction in disclosure periods—why would we not? However, the bill increases from 36 months to 48 months the sentence period for which somebody will have lifelong disclosure. Our concern is that people who serve long-term and life sentences can conduct themselves as model prisoners and take up all the education and other opportunities in prison but they know and say that, when they are released on parole, the stigma of being a prisoner and the shame that they will feel at having committed a serious crime will, inevitably, stick to them forever.

We have a prison service that, under Colin McConnell, is more interested than ever in developing desistance-led, rehabilitative and transformative penal policies. We have people in prison for longer than ever before and we still do not seem to trust those measures. We still require people to be held at arm’s length and to be denied the reintegrative processes that SPS policy has promised them they can have—civic repair, re-engagement and becoming part of society.

Lifelong disclosure for sentences of 48 months or more seems unnecessarily punitive, particularly when the evidence—especially the recent evidence from the SCCJR—emphasises that, after seven to 10 years, a former prisoner’s chance of reoffending is equal to that of someone who has never offended. The evidence supports allowing people to have spent convictions. It also supports social justice and reintegration. People should not always have to disclose a conviction when they apply to university or any new job. They already have a gap on their CV. We are shoring up the stigma and blocking people from re-entering society as full citizens, as we say they can after they have served their time.

Ben Macpherson

You would argue that the bill does not do enough to change attitudes to the employment of people with convictions.

Dr Brangan

No, it does not, because it permits people to be stigmatised. As far as I am aware, it does not do anything to address the existence of the box that allows employers to ask someone whether they have a criminal conviction.

Often, when someone applies for a university course, they will be asked whether they have a criminal conviction. I was recently at a prison education conference, speaking and listening to a young man who applied to do an architecture course. He applied to an elite university and, although he had done brilliantly in everything else, when the university found that he had a criminal conviction from when he was 18, it rescinded his place.

We should penalise employers and universities for acting as extensions of the justice system and keeping people out of society. Perhaps we should not penalise them—I am for penal parsimony—but we should create a legislative framework for what is and is not acceptable. It is not just about reducing the period for which someone has to disclose their conviction but about reducing an employer’s reach into someone’s background.

Ben Macpherson

Some work is needed to change recruitment practices. Dr Hannah Graham touched on that in her written evidence, which says:

“We are of the view that while the proposed reforms are to be welcomed, they are limited in scope.”

Do you want to add anything to what Dr Brangan has said?

Dr Graham

That part of our submission was authored primarily by Dr Beth Weaver from the University of Strathclyde, who is my co-author and a fellow researcher in the SCCJR. She recently conducted a moderately detailed review of issues surrounding disclosure, employment and desistance from crime, which considered time-to-redemption studies. She has come up with a number of suggestions, which I agree with, that could be advanced and that other countries have advanced in order to encourage a balance between the information that needs to be known for potential public protection reasons and that employers want to know for particular occupations and the needs of people with convictions. In Scotland, 30 per cent of men and 9 per cent of women have at least one criminal conviction, so we are not talking about small groups.

We are broadly supportive of part 2 of the bill. It is tricky to address the issue, because elements of it are reserved and not everything can be achieved through legislation. However, a piecemeal approach to the consideration of disclosure and its collateral consequences is not as helpful as a more sustained, overarching approach to who should disclose what and when. Beth Weaver makes a number of suggestions. I do not know whether you would like me to explain those now, as they might be the subject of another question.

11:30  

Ben Macpherson

We will leave that for now, but perhaps you could submit those suggestions.

The Convener

Yes—it would be helpful if you gave those to the clerks, Dr Graham.

Ben Macpherson

Dr Brangan mentioned an 18-year-old, but will the current balance in the bill assist children to move on from previous offending behaviour?

Dr Brangan

It certainly will, but we should also protect adults. What about someone who is 20 years away from having committed a homicide and has spent 10 years in prison? The chances are that it would be much longer. The question that the bill raises is whether we allow people to move on. I wonder when we are willing to let go and to forgive, or even just to tolerate. So, yes, the bill helps young people, but we should not write off adults either.

Ben Macpherson

As I said, I want to ask about the terminology in the 1974 act. The bill amends and builds on parts of the 1974 act, but, in our evidence session last week, concerns were raised about the use of terminology in that act and, in particular, the terms “offender” and “ex-offender”. Would it be desirable and/or practical to replace the 1974 act or is the bill, as it is currently set out, sufficient?

Leanne McQuillan

It would be desirable, but I am not sure whether it would be practical. The 1974 act is a difficult piece of legislation to understand, and it perhaps uses terminology that was more acceptable in 1974 than it is now.

Ben Macpherson

Are there any other thoughts on that?

Dr Graham

The points have been well made to the committee in previous evidence sessions about the overall resistance to the word “offender”, particularly in a bill that deals with disclosure and that relates to people entering the labour market and accessing education. We must consider at what point we stop calling people offenders if that is not accurate.

The Convener

We are moving on to that point now, so I will bring in Liam Kerr.

Liam Kerr

I want to stay on Ben Macpherson’s line of questioning on disclosure periods. Dr Brangan asked why we would not welcome the reduction of disclosure periods. From listening to the discussion, I presume that the answer is that an employer who was concerned about an employee or about public safety might be concerned. That raises a more basic question about the purpose of a disclosure period. What and whose interests are we trying to protect?

Dr Graham

Are you asking what the purpose of disclosure is?

Liam Kerr

What is the purpose of a disclosure period?

Dr Graham

There are multiple purposes to disclosure and having a period in which a conviction has to be disclosed, which I think the Government has referred to as a buffer period of time after the sentence has finished. One reason for it is that it minimises the risk of liability and loss. As you say, there are concerns surrounding public protection when the nature of employment involves working with particular groups. It could have something to do with assessments of moral character, in terms of honesty or trustworthiness, and the need to comply with statutory occupational requirements. Those are some of the reasons for the regulations on disclosure periods. There are also provisions to guide or limit practices of disclosure in order to reduce unnecessary barriers to people with convictions accessing employment.

Disclosure periods exist for multiple purposes. The question of which purpose is the most important depends on whose perspective we look at the issue from—that of the person with convictions, the employer’s perspective, the Government’s perspective or those of others. I imagine that you would get some nuanced responses to that question.

Liam Kerr

If that is the purpose of a disclosure period, can you point to any research that shows that the length of time that is proposed for the disclosure period sufficiently relates to the crime and the propensity to maximise public protection or ensure rehabilitation?

Dr Graham

Beth Weaver has reviewed time-to-redemption studies, which look empirically at the amount of time that it might take a person with convictions to be considered to pose the same risk as a person who has no convictions. The studies are based on convictions rather than on offending, because it is entirely possible for some offending not to have been caught. There is also a caution against considering a non-convicted person to have a baseline risk level of zero for their probability of offending.

The research has shown that, in general, after an average of seven to 10 years without a new arrest or conviction, a person’s criminal record loses its predictive value. That is an overarching finding of studies that have been done across a national cohort as well as studies that have been done for a single city. The period of seven to 10 years applies irrespective of the crime type, although there are a few subtleties—for example, it might take slightly longer for the criminal records of people who have been convicted of violent crimes to lose their predictive value. Nevertheless, overall, after seven to 10 years, the risk of reconviction of convicted people is not particularly different from that of non-convicted people.

Liam Kerr

Can I take it that you are comfortable that the proposed disclosure periods have been sufficiently plotted against what the evidence says is appropriate?

Dr Graham

That is by and large the case, but I support Dr Brangan’s submission that the bill could go further. We could consider why the provision of a disclosure period, which gives the chance of something becoming a spent conviction, is not being extended to those who serve long-term sentences. Such an approach is not widespread in European research and practices; it is more unique to the United Kingdom. Elsewhere, employers do not routinely do criminal record and background checks as the norm.

Liam Kerr

That is interesting. Will you elaborate on that? You just said that what we do on disclosure is unusual, as a principle, from the European angle. Is that correct?

Dr Graham

I am talking about aspects of the European angle—Europe is a big place.

One option that is moderately common in a number of countries, which I can list, is expungement of criminal records. That means not revealing spent convictions. Under the European convention on human rights, and in challenges in the European Court of Human Rights, questions have been raised about why standard and enhanced disclosure and other forms of disclosure checking—although the bill relates to basic disclosure—can still provide information about spent as well as unspent convictions.

Expungement of criminal records and not revealing spent convictions are true for Finland, France, Germany, Greece, Hungary, Italy, Luxembourg, Spain and a long list of countries. That practice is moderately common. If the committee wishes to have more detailed information, I can ask Beth Weaver to correspond with it.

The Convener

We have asked specifically about disclosure. Does Liam Kerr have another angle?

Liam Kerr

I have one more line to explore. Leanne McQuillan made a distinction between different crimes. Is disclosure something of a blunt instrument? The bill gives a disclosure period for all crimes that attract a certain sentence. An assault might never reoccur; it might be a one-off and the individual might mature. However, the propensity to commit another sophisticated financial fraud might be greater. As an employer, I might want to know about the sophisticated financial fraud much more than about the assault. Is that a fair distinction to make?

The Convener

The witness can be brief.

Dr Graham

Is Liam Kerr saying that the disclosure of some crime types would be more relevant to particular occupations or to employers in general?

Liam Kerr

Perhaps. We have a blanket disclosure policy that, after X time, a person does not need to disclose their conviction, but I am suggesting that, if there is a distinction between crimes, the type of people who commit them and the state of their ability to do so, an employer might have a greater interest in knowing about a conviction regardless of the length of time that has passed.

Dr Graham

Indeed, but if we bring up the question of the person’s ability to reoffend, there might be some complex and difficult conversations to be had. Relevance of disclosure to the occupational role and propensity to reoffend or be reconvicted are separate considerations based on crime type. For example, shoplifting might have a moderate or high risk of reconviction but other types of crimes, such as sexual violence, might have a moderate to low risk. I urge caution about moving towards disclosure being about the risk of reconviction because there might be some difficult public conversations to be had.

Rona Mackay

We touched with Dr Graham on the higher-level disclosure checks. I would like to know the witnesses’ views, as briefly as they can. Is it good that the higher-level checks are not included in the bill or should they be revisited and reformed at some point?

Dr Brangan

The Howard League Scotland absolutely recommends that the higher-level disclosures need to be addressed. The changes to disclosure periods that we discussed are welcome but, when we look more broadly at disclosure, we see that it is a two-tier system. In fact, for certain jobs and positions, the list of which is constantly expanding, a spent conviction, an arrest from which no conviction arose or a caution can be revealed. That is very serious.

If we are trying to base the system on reintegration, to encourage people into employment and education and to create a healthier Scotland, we need to address at some point the demand that people always disclose their convictions, no matter the length of period from whatever the transgression was. It slightly undermines some of the better ambition of part 2 of the bill.

George Adam (Paisley) (SNP)

Good morning. I will ask about internet access to past convictions. We all know that local newspapers will camp outside the sheriff court and report on stories, as is their right. However, let us compare the situation to the early 1990s. At that time, if something happened, people would have had to go to the library to find information on previous convictions. Now, employers can just use an internet search engine and check whether there is anything on the person.

How do we deal with that? Is it a problem? Is it all about changing attitudes? Do we legislate against it or do we try to educate people to change their attitudes towards past offences?

Dr Graham

Perhaps one of the considerations is whether we can even legislate against it. The Google effect is moderately well documented.

You have received submissions from Recruit with Conviction and Unlock, a charity that works predominantly in England and Wales. A number of the measures that you highlighted are worth while doing in concert with one another. To try to tackle some of the systemic stigma, broader awareness raising is needed with employers about anti-discrimination measures and not only the buffer periods but the meaning of the information that might be yielded from disclosure—what might be relevant or irrelevant to them.

We need people with convictions to be able to access the labour market, work, have a routine and have a legitimate and legal income that contributes to the tax base and not to have the other options. Therefore, I very much support the calls for broader awareness raising about the benefits of the system and work that might have to be done with employers at the UK level as well as locally.

11:45  

We also need to have some frank conversations about what might pose a risk and what might not. I would not say that all employers set out to be prejudiced against people with convictions, but some other jurisdictions, such as the US and Australia, have moved towards more guidance and have implemented measures to make it clear that unless the conviction is highly relevant to the occupational role, and depending on the crime type and the time since conviction, consideration of the conviction in perpetuity could be discriminatory and a barrier to people’s employment and social integration. If we do not support the person’s desistance from crime, along with social integration and access to legitimate sources of income, it poses a public protection issue, which would lead to an even bigger public conversation.

Dr Brangan

I have colleagues who research cybercrime and they are forever telling me about the dark net as a social movement. We can legislate for the Google effect, but it would be incredibly difficult to try to wrangle what goes on in those areas that are beyond legislation—social media is a bit like bandit country. However, the point about raising awareness and thinking about it more broadly is important because that is the longer game. I agree with Dr Graham that it is not something that can just be tackled with legislation; we need to have a robust conversation.

The Convener

Do any of the practitioners have a view on that?

Leanne McQuillan

Douglas Thomson mentioned the need to explain some of the terminology. If the bill is enacted, it might be useful to publish guidance for employers on what is meant by a summary conviction or an admonition. Some people have no experience of criminal justice and might assume that someone who has a conviction is a criminal. Making it clear what the powers of a summary court are and what those disposals mean would show that a conviction is not necessarily as bad as it looks at first—for example, someone might have one conviction, which might be an admonition.

George Adam

If an employer googles the person in front of them, there is a problem. We could educate the employer, but in many—not all—cases, much of the information that they get is a sensationalised version of events in a newspaper report. Perhaps we need to educate the local press so that it understands what is happening in the local courts. How do we get to a place where we can have that mature discussion?

Leanne McQuillan

It would be extremely difficult to get the press not to report sensationalist stories.

George Adam

It would be impossible.

Leanne McQuillan

Yes. I cannot immediately think of a way to do that.

The Convener

That is perhaps a side issue from the bill that we are discussing today, but it might come up when we have a roundtable on the next bill.

George Adam

We were talking about education and I just wanted to add that there is more to it than just educating a group of employers; it is about society in general. That is the difficulty.

Mairi Gougeon

I have some questions about the role of the Parole Board for Scotland, which some of you discussed in your written submissions. Can someone explain how the board operates at the moment and what the changes will mean? I was interested by a few things in the submissions, particularly the Law Society’s points about the recall of prisoners who are released on home detention curfew and how the limitation on that will change. I know that the Law Society does not have figures, but is anyone else on the panel aware of how that operates at the moment?

Douglas Thomson

I was a member of the Parole Board between 2001 and 2007, so I was on the board when the Management of Offenders (Scotland) Act 2005 came into force and when the re-release panel of the board first became involved in determining cases where a person had been brought back into custody for a breach of a home detention curfew.

As I hinted at earlier, the very early teething stages of that process were particularly difficult for the board, because the quality of information was not good and the period for information to become available was sometimes far greater than it should have been. We were dealing with—in respect of home detention curfew cases, we will still be dealing with—people who are subject to that for a maximum period of about 162 days; it is about five months. If there is an alleged breach during that period and someone’s licence is revoked immediately, and if the matter is to be challenged, that person has an entitlement to have that challenge determined by a quasi-judicial body as soon as possible. Things have improved a great deal since I came off the board in 2007, but people can still sit in custody for some weeks when a very coherent and simple case could be put forward regarding the circumstances of their alleged non-compliance.

Mairi Gougeon

Can you tell us in a bit more detail about the general workings of the Parole Board and some of the other changes that are proposed, such as those on appointments? Have the proposed changes been welcomed?

Douglas Thomson

Some of the proposals seem to be good ideas. One issue that has proved controversial and is perhaps worthy of comment is the difference between the test for re-release of a determinant-sentenced prisoner—a life prisoner—and the test for an extended sentence prisoner. That difference is based on the decisions of the European Court of Human Rights and English appellate case law. When someone is serving a life sentence, the test is whether that is necessary for the protection of the public, and when someone is serving an extended sentence, the test is whether that is necessary for the protection of the public from risk of serious harm. It is perhaps a little anomalous that the two tests are slightly different, and I do not think that it would be likely to create injustice if there was a uniform test for when a person is fit to be released from custody when it is felt that the public would be adequately protected. Although there is a logic behind the serious harm test, I suspect that, in practical terms, the board continues to apply everyday common sense to cases, as it did when I was a member. If there is a concern that somebody is not yet at a position at which they can safely be released into society, the terminology is not really key and it is not necessarily helpful.

Mairi Gougeon

Dr Brangan, do you want to comment or respond to any of that? There was quite a lot in your submission that related to the Parole Board.

Dr Brangan

On the comments that we made about the Parole Board, one small section of the bill says that in cases of revocation to prison the time available to investigate or appeal a decision on a prisoner’s case will be reduced from five years to six months. That seems to be an incredibly dramatic change—I am not sure whether that has been brought up anywhere else. The justification is about the retention of paperwork, but surely that would totally contravene the statute of limitations and someone’s rights to appeal something.

Mairi Gougeon

Do you have any information on that? The Law Society’s submission talked about the need for more figures. Do you know how many people that would affect at the moment?

Dr Brangan

No—I am trying to get data on temporary releases and recalls. Even if it relates to only a handful of people, it seems quite serious when we think that someone has gone to prison and has been through a certain amount of bureaucracy and settling in. The first six months can pass incredibly quickly and, all of a sudden, someone could still be amped up about what they feel is an unjust recall, but their right to appeal that decision would be gone. That change to parole is quite serious and needs to be highlighted. It needs to be justified much more strongly than it is by the reason relating to the retention of paperwork by the SPS.

Daniel Johnson

I will follow up on some of the things that Douglas Thomson said about the tests. The Parole Board’s submission expressed a degree of dissatisfaction with the bill. Do you agree with the Parole Board’s view that we could do with greater clarity? The role of the Parole Board is under increased scrutiny, following the Worboys case in England. Do you think that having greater clarity around these questions would help to ensure transparency, as well as it being useful for the Parole Board? Given the details of the Worboys case, do any panel members have any reflections on that?

Douglas Thomson

At the outset, I observe that it is unlikely that the Scottish board would have reached the same decision as the members of the English board did. Because of the existence of the risk management authority and the way in which the MacLean committee approached dealing with orders for lifelong restriction, our systems were considerably more robust and ECHR compliant than the English intermediate punishment programmes that became so discredited.

The Scottish board has been dealing with a much more robust risk management system than the English board, and has therefore had a much better quality of information. I have seen some old-style English parole dossiers that were very much in a tick-box format. There were pages and pages on which there was a series of boxes and it was a matter of whichever box had a black dot in it. Scottish dossiers have always been based on written information, which includes impressions of the prisoner, psychological risk assessments and so on.

Moving from the Worboys situation, it is important that the board becomes more transparent. I think that it could open its hearings to the public and make its decisions available to them, albeit in a redacted format. Formerly, the prisoner would receive a letter, but now the parole board issues a decision minute, and those minutes could fairly easily be redacted to avoid any reference to particular individuals or matters regarding the crime that are not for public consumption. If the board’s decisions can be made known in that way, the public will have a greater understanding of how the board works, which may increase confidence in the operation of the board.

Daniel Johnson

That suggestion regarding publication of the minutes is an interesting one. Do other members of the panel have any thoughts around transparency? No? You do not have to answer.

The other critical question concerns the independence of the Parole Board. The Parole Board expressed concern in its submission about that at some length, the sentiment being that, while there are provisions around its status and independence, those could be more substantial, and it could be put on an equivalent footing to other parts of the court system. Does Mr Thomson, in particular, have a view on that? I am also interested in the views of other members of the panel.

Douglas Thomson

The Parole Board tribunal system is a very odd part of the Scottish legal system. It is called a tribunal, but it does not form part of the Scottish Courts and Tribunals Service, and there is no automatic appellate process for its decisions. It sits in a rather ad hoc position. It was created in 1967, in a very different world, to fill a gap that was perceived following some decisions or cases that took place in England. Scotland effectively tagged along beside England at that time, but we have moved on considerably since then.

The Parole Board for Scotland has had greater autonomy than the board in England. The appointment process for members was improved considerably in the 2001 act: members in Scotland had security of tenure, and although the Probation Service ran or funded the Parole Board for England and Wales, the Scottish board was never part of that. There has been a greater degree of independence, but because the Scottish board is not yet on a formal statutory footing, its position is not easy to understand.

There is no piece of legislation that sets out what the Parole Board does. Its rules are in the form of a statutory instrument, but, with the exception of the 2001 act and the current bill, there is nothing that sets out what it does. The tribunal system has effectively developed in increments and as a result of court decisions. There would be some merit in placing the board on a formal statutory footing, as the board itself says, and in considering whether to put the Parole Board tribunal system on a statutory footing, so that it becomes part of the SCTS and perhaps has some form of appellate process. At present, if someone is aggrieved by a decision of the Parole Board, they have to go from the criminal system to the civil system by way of judicial review, which creates certain difficulties.

12:00  

Daniel Johnson

Do any other panel members have views on that suggestion?

The Convener

Again, please do not feel that you all have to answer—I am conscious that the clock is ticking.

Daniel Johnson

No, you do not have to answer—I am just interested.

Dr Brangan

The only point that the Howard League Scotland raised about the matter in its submission is that the Parole Board is increasingly less likely to give parole, which partly explains the rise in prisoner numbers. In thinking about how we reconstitute the Parole Board, we should be thinking about how we get people out of the prison system. Right now, Scotland has the largest life-sentence prisoner population of any country in the Council of Europe, partly because our prison sentences are getting longer and longer, and people simply cannot get out of prison. I am trying to get statistics on that. Hundreds of prisoners are serving over tariff; that means that they are serving longer than the punishment part of their sentence because they cannot receive release. Thinking about the constitution of the Parole Board and its aims and agenda is a way for us to think about Scotland’s staggeringly high imprisonment rate.

Daniel Johnson

Again, if the minutes were published and the Parole Board’s root rationale was given, that would help us to delve into some of those issues.

Douglas Thomson

An issue that arises from what Dr Brangan describes is the fact that the large number of lifers is currently very much skewed by the number of prisoners who have been recalled for non-compliance with their licence, which has increased dramatically in the past few years.

I was at a Howard League lecture fairly recently, which was given by Dirk van Zyl Smit. He observed—I made some comments on this, too—that there are a number of prisoners who are now in custody not because of their original sentence but because of their non-compliance with licence conditions. That brings us full circle back to electronic monitoring and the question whether systems could be put in place that would better monitor risk and the compliance of such persons with their licence. That could, in reality, reduce the number of people going back into custody and very often spending two, three or four years there when they have not done anything particularly serious but have simply not complied with supervision.

Daniel Johnson

That is a helpful insight—thank you.

The Convener

That brings us full circle. Liam McArthur has a brief supplementary, and we will then move to final questions from Maurice Corry.

Liam McArthur

My question follows on from Douglas Thomson’s earlier point about the way in which the Parole Board in Scotland takes decisions in comparison with its counterpart south of the border. You said that, in Scotland, there was a more substantive assessment and the input better reflected future risk. Do you have any concerns about the removal of the requirement for a psychiatrist on the Parole Board? One would assume that, despite the removal of the requirement for a High Court judge, the board would at least have legal expertise well covered, but psychiatric input would seem to be a fairly essential part of the assessment too

Douglas Thomson

A number of life-sentence prisoners, and some determinate-sentence prisoners, will be in hospital when they come before a Parole Board tribunal to be considered for parole so, in that respect, there is a benefit in having a psychiatrist present. During my time on the board, I chaired a few tribunals at the state hospital. It was always helpful to have somebody there who had a psychiatric background, because they would be the best person to question the doctor in charge of the prisoner about the management of certain issues. In that situation, we were concerned with somebody who would be potentially going from hospital back to prison or into the community. Issues would arise in cases in which the prisoner was also subject to the Mental Health (Care and Treatment) (Scotland) Act 2003. Although that involves a minority of cases, there is, in my view, merit in including on the board somebody who can give psychiatric input when a case has a psychiatric element.

Liam McArthur

So you would prefer to see that provision dropped from the bill as it stands.

Douglas Thomson

Parole Board members only serve part time, and having a psychiatric member of the board is a good thing.

Maurice Corry

Does the panel have any concerns about the proposed changes affecting the functions of the Parole Board with regard to prisoners themselves? I will leave it open to any of you to come back on that.

Douglas Thomson

Can somebody else speak now? [Laughter.]

Maurice Corry

I take it from your response that you have no concerns.

Douglas Thomson

I would not say that we have no concerns—I just do not want to monopolise the final part of the session.

Much of my work involves conducting tribunals as a representative, so I have day-to-day hands-on experience of how the board operates. I am a little reluctant to put my personal views to the committee, because I am here as a representative of the Law Society, and anything that I would say would be based on my private practice as opposed to a general Law Society view. In light of that, I would prefer not to answer the question on behalf of the Law Society of Scotland.

Maurice Corry

Okay. Does anybody want to add to that?

The Convener

Given the silence, I think that it is a no to that.

Maurice Corry

That is all right.

The Convener

That completes our questioning. It has been a long session. I thank the panellists for their attendance and their forbearance. The information that we have gleaned and the direction that it has taken us in has been extremely helpful.

12:05 Meeting suspended.  

12:09 On resuming—  

The Deputy Convener (Rona Mackay)

Good morning, and welcome to the 16th meeting of the Justice Committee in 2018. We have received apologies from the convener, Margaret Mitchell, and Jenny Gilruth. I welcome Stewart Stevenson, who is substituting for Jenny today.

Our only item of business is our fourth evidence session on the Management of Offenders (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome our first panel: David Strang, Her Majesty’s chief inspector of prisons for Scotland; Chief Superintendent Garry McEwan, divisional commander in the criminal justice services division of Police Scotland; Ruth Inglis, director of development and innovation at the Scottish Courts and Tribunals Service; and Roddy Flinn, legal secretary to the Lord President.

I thank those who provided written evidence—it is very useful. We will move straight to questions.

Daniel Johnson (Edinburgh Southern) (Lab)

Broadly, the bill’s approach to electronic tagging is concerned with two issues: the need to update things because of new technology and the issue of trying to keep people out of prison. In situations when it might otherwise not be possible to release someone, tagging can perhaps provide the security that is required. However, concerns have been expressed—by the Howard League for Penal Reform and others—that that approach could lead to people who would otherwise be given non-custodial sentences or be released simply being up-tariffed. What are the panel’s thoughts on that? How can we prevent people who would otherwise be out of prison from simply being tagged?

David Strang (HM Inspectorate of Prisons for Scotland)

There is a high level of imprisonment in Scotland. In my view, that level is disproportionate and unnecessarily high—we have the second highest level of imprisonment per head of population in the whole of Europe, behind only England and Wales. We imprison too many people, particularly on short sentences.

Prison is absolutely necessary for those who have committed serious crimes and who pose a serious threat to the public. The purpose of the criminal justice system is to reduce crime, keep people safe and reduce the number of victims. However, our use of short-term imprisonment contributes to an increase in crime—locking people up for short periods actually makes Scottish society less safe. In January, when I gave evidence to you on the use of remand, I told you that about a fifth of people who are in prison in Scotland today are unconvicted and untried—they are on remand.

I welcome the use of electronic monitoring where it will reduce the use of imprisonment. I am thinking particularly about people being held on remand and about having early release back into the community as a disposal that is available to the court. Crime and offending behaviour should be dealt with by the court, and the use of electronic monitoring as an add-on to a community payback order is useful as long as it is an alternative to someone being in custody.

Behind your question is a suggestion that courts might just add electronic monitoring as a way of ensuring that someone stays out of trouble. The Howard League is right in saying that there is a risk that, if the measure is used too widely, people might be returned to custody who otherwise would not have been. Therefore, the implementation of the policy is important. The tag alone is not sufficient; the person must also have support and supervision in the community in order to keep them out of the criminal justice system, particularly if they have addiction issues or problems with their mental health.

Daniel Johnson

I am interested to know whether other members of the panel agree with those comments.

Chief Superintendent Garry McEwan (Police Scotland)

Yes—I do not disagree with anything that has just been said. If the court so decides, serious high-risk offenders and criminals should be kept in custody and should serve a term of imprisonment. However, for those who are convicted of lower-level offences, a short period of remand leads to massive disruption to family, employment, housing and all the other associated factors. It is important to note that we are discussing electronic monitoring, not control. It is not a catch-all, and it will not prevent reoffending; it will allow us to monitor somebody’s behaviour—more likely, in a retrospective fashion.

Electronic monitoring is a tactic and an innovative practice that we should be considering, although it must suit the needs of the offender. There should be wraparound services, with other measures in place to support the individual. It cannot be used in isolation but must be used with other tactics, with partners and others.

Daniel Johnson

What is the view of the Scottish Courts and Tribunals Service?

Ruth Inglis (Scottish Courts and Tribunals Service)

I thank the committee for inviting the SCTS to give evidence today. I am appearing on behalf of the SCTS regarding its role in providing efficient and effective administration to the courts; my views do not reflect the views of the judiciary, and my comments will be confined to the operational impact on the courts, without delving into matters of policy.

I am not sure that I could usefully add anything in response to the question that was asked.

Daniel Johnson

David Strang, in your written submission, you highlight some concerns around consistency. Can you explain what those concerns are and set out some of your thoughts about how consistency could be improved? I presume that that relates a little bit to my initial question about the need to ensure that electronic monitoring is used to help people get out of prison as opposed to being used to tag people who would already be out.

David Strang

My comments on consistency are about the support that is available for people across Scotland in different local authority areas. I am thinking, in particular, about bail supervision. Different courts will tend to use community payback orders in different ways, and the support that is available is not necessarily consistent among local authorities and courts. That is what my comments on the support that is available for people in the community were about. The situation varies across Scotland.

Daniel Johnson

Can I put that point to the Courts and Tribunals Service? We have heard a number of times, both on this subject and regarding remand, that there is variation between different areas, which is based on sheriffs being aware of what is available to them. What steps can be taken to ensure that the full information is provided and that the proposed legislation, if it is passed, will be used as effectively as possible?

Ruth Inglis

To ensure consistency and availability, that might amount to the provision of additional training, including staff training and judicial training. That is how the measures would impact on the court service—and that, in turn, would require additional funding.

Daniel Johnson

Do you think that that funding is contained in what has been set out, particularly in the financial memorandum? Is the proposed funding adequate for that?

Ruth Inglis

We contributed to the financial memorandum to the bill as introduced. We assumed a 50 per cent increase in the number of relevant orders, with an associated increase in breaches and miscellaneous applications. The cost of that increase is estimated to be in the region of £800,000 per annum for the sheriff court and in the region of £9,500 for justice of the peace courts. Very few relevant orders are made in the High Court. The financial memorandum is structured around the bill’s current provisions, and it sets out a fair estimate of the costs.

Daniel Johnson

My final question is for Garry McEwan. In your first response, you said that electronic monitoring is about monitoring rather than preventing behaviours. By the same token, however, if the policy was successful and was used more widely, your workload could increase, because you would have to respond to the behaviours of people who were out of prison but who might otherwise have been inside. What operational impact would it have on you and the police more widely if you had to follow up electronically monitored offenders?

Chief Superintendent McEwan

Additional back-office support would be required to update the various systems, including the police national computer and the criminal history systems, but the numbers would not be significant. You are talking about penny numbers of staff—perhaps one or two additional members of staff, depending on the throughput. If electronic monitoring were considered for those on bail, there would be a greater increase in the back-office workload, including administrative work, because there are many thousands of people on bail across the country.

We do not have the power to arrest those who are currently on restriction of liberty orders or home detention curfews for breaching the monitoring. That is a matter for the court. If a breach is reported to the court, it can, if it chooses to do so, issue a warrant. That is when there would be an impact on police officers across the country, who would aim to arrest those individuals and present them back to the court. There would be an impact only if those individuals breached curfews or orders.

Daniel Johnson

Have you assessed what the impact might be on response officers?

Chief Superintendent McEwan

No, we have not.

The Deputy Convener

Mr Flinn, do you want to comment on anything that you have heard?

Roddy Flinn (Scottish Courts and Tribunals Service)

No, I have nothing to add at this point.

John Finnie (Highlands and Islands) (Green)

The Government has indicated its hope that the monitoring requirements will be appropriate to the circumstances, and it has talked about creating a response framework to ensure consistency of approach. It was helpful to hear Mr McEwan comment on what happens at the moment. Do you imagine that the police will be involved in putting together a framework? What are Mr Strang’s or Ms Inglis’s views on the matter?

Chief Superintendent McEwan

I would certainly be interested in getting involved in the discussion, although the vast majority of the work is for the prisons and the courts. The Scottish Prison Service issues home detentions and curfews. The police become involved at the tail end, after individuals have breached their conditions, reports have been submitted and warrants have been issued. The reality is that it is more a matter for the prisons and the courts.

David Strang

It will also be more a matter for the social work services that will supervise the monitoring in the community.

Garry McEwan mentioned that thousands of bail decisions are taken, but I do not anticipate that electronic monitoring will be envisaged for those people. The bill is about people who would otherwise be remanded in custody being able to remain in the community through the introduction of electronic monitoring. Therefore, the numbers would not be massive. It is hoped that only small numbers would be involved. The impact will be felt more by social work and the support agencies in the community.

John Finnie

Ms Inglis, you were asked whether you considered gender when you put the figures together. We have had representations about the disproportionate impact that electronic monitoring could have on women—particularly those with childcare responsibilities—and what that would mean for the children, who would, in effect, be confined to the house, too.

Ruth Inglis

I do not have any data on that aspect of monitoring, and I am not sure whether the SCTS could provide data on it. Our case management systems are set up on the basis of operational need as opposed to research or statistical analysis needs, so there are limitations on what data we could provide in that area.

10:15  

John Finnie

Has your service been involved in the development of the response framework?

Ruth Inglis

I have no detail about the response framework.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

My question is for Mr Strang, and it is about the statistics. They might not be your statistics, Mr Strang, so you might not be able to answer this question.

You said that Scotland has the second highest proportion of people in prison—England and Wales has the highest—and that a fifth of them are on remand. Do the figures from other parts of Europe include remand prisoners? In other jurisdictions, remand prisoners are often held separately in places such as bail hostels, which restrict their liberty but are not prisons. Are the figures as comparable as your answer would suggest?

David Strang

There are international standards for comparisons across the globe. There can be different counting mechanisms, but the figure for the prison population per 100,000 of the population is accepted. It is not an absolute number; it is a comparison with the size of the population. The European average is about 100 prisoners per 100,000 people. Scandinavian countries have been mentioned, and they imprison between 60 to 70 people per 100,000. Scotland’s figure is 130 and England’s is about 140.

There might be minor variations. One of the differences relates to whether psychiatric patients are held in a secure hospital setting or a prison environment. There might be some variations at the margins but, in terms of the broad scope, we imprison 50 per cent more of our population than the European average. That is an accurate figure.

Stewart Stevenson

My quick arithmetic says that, if all remand prisoners were not held in prison but were instead released using some form of tagging, Scotland’s figure would go down to 105 per 100,000 people.

David Strang

Yes, but there is absolutely no suggestion that no one will be held on remand. I am not arguing the case for every prisoner who is on remand. If someone is charged with a serious offence, they absolutely need to be locked up from the day of arrest and throughout the court proceedings—and, if convicted, they should be kept in custody for a long time. It is important not to think that I am arguing that all people who are in prison on remand should be held under electronic monitoring—I am not saying that at all. I am talking about a certain proportion of such people who could be better supported in the community.

Tagging could also ensure that they turned up at court. Quite a lot of people—especially women, whom Mr Finnie talked about—are remanded to ensure that the court case can go ahead. I understand that. I am talking about a smaller number than 100 per cent of the people who are on remand.

Stewart Stevenson

I was merely seeking to explore the limitations. Getting the Scottish figure down to the European average would require doing a lot more than simply dealing with remand prisoners. That is all that I was trying to say. I was not taking the view that you might have thought I was.

David Strang

It is also about prison sentences. I am a big supporter of the presumption against short sentences.

Liam McArthur (Orkney Islands) (LD)

Mr Strang, you talked about the additional workload pressures on social work departments as a result of electronic monitoring. I do not think that there can be a social work department in the country that is not already experiencing severe workload issues.

This might not be for this panel to determine—it might be more for the minister and others—but, in your view, is there an inherent risk that we might apply further pressure to an already overburdened service that will make the success of electronic monitoring more difficult to achieve?

David Strang

I do not have a view on resourcing of social work services. However, to take the long view, if we accept that electronic monitoring is likely to lead to fewer people being imprisoned and a reduction in crime overall, it is the right thing to do and will reduce the impact on police, courts, prisons and criminal justice social work.

Liam McArthur

To expand on the question of monitoring, what are the panel’s views on the primary motive behind and benefits of alcohol and drug testing? Does it give the courts more flexibility to deal with those who come before them and provide greater reassurance for the public? Does alcohol and drug monitoring support efforts towards desistance on the part of people who have addiction issues? I am wondering whether there is a primary motive behind the policy or whether there is a blend of different benefits.

David Strang

There is a parallel here with drug treatment and testing orders, which are overseen by the courts as part of the criminal justice system. People who are on DTTOs have said that they find the discipline of the supervision and support, and the requirement to appear before a sheriff, helpful in trying to manage their addiction.

As you know, the level of addiction among people who are going through our courts is very high. More than 50 per cent of people in prison say that they were drunk when they committed their offence. There is a huge correlation between addiction, whether it involves drugs or alcohol, and people’s lifestyles, offending and so on. We can take encouragement from the fact that DTTOs, which are a disposal of the court, are seen as supportive.

To answer your question, electronic monitoring for alcohol can potentially provide additional supervision and support for people who are trying to change their ways. It can only be a voluntary disposal, and it is not about catching people out and giving them more punishment; rather, it is a way of gathering information that may be helpful in supporting people so that their outcomes are likely to be better in the long run.

Liam McArthur

I will ask Garry McEwan for his thoughts in a moment.

Is there a balance to be struck in ensuring that the measures that we apply do not become so intrusive that they create other issues with regard to how the data and whatnot that is held on individuals is stored and shared?

David Strang

I understand that point, but there is nothing in our criminal justice system that is more intrusive than sending someone to prison. People are taken from their home, they lose their job if they have one, their family relationships are broken and they are incarcerated in a prison for however long. That is the highest level of intrusion that the criminal justice system provides. You are right to raise issues around data and information and the potential for intrusion, but, as an alternative to incarcerating someone in prison, monitoring involves a much lower level of intrusion. Those issues will need to be looked at, but I do not think that they are a barrier to the use of electronic monitoring as an alternative to custody in the way that is proposed.

Liam McArthur

Mr McEwan, do you have a view on that?

Chief Superintendent McEwan

I would probably echo what has just been said. Alcohol and drugs are a significant causal factor in much of the crime that happens in the communities of Scotland. Alcohol and drug monitoring is an alternative and an additional wraparound for monitoring individuals who have a propensity to commit crime, or who have committed crime, under the influence of alcohol or drugs. It could well be advantageous in addressing their needs and protecting the public retrospectively. As an alternative to people serving short-term sentences in prison, monitoring is certainly a viable option.

Liam McArthur

Are there concerns that, depending on global positioning system availability, the disposal may be available only in some parts of the country? Should we be concerned about that, or is it expected that technology will allow us to apply the measures across the entire country, including in remote and rural areas?

Chief Superintendent McEwan

I am not sure about the issues at that level of detail. I have heard it discussed that GPS is not great in some areas of Scotland and is better in urban areas and rural areas, so the issue is worthy of further consideration.

Liam McArthur

I suppose that it is partly a technological issue and partly an issue of geography. Presumably, consideration is given to the fact that, in using electronic monitoring, we are managing a risk. For example, in island settings, such as those that I represent, there may be concerns among Mr McEwan’s colleagues that monitoring is going on in an area where there is no police presence and, therefore, the ability to respond to issues is more challenging. Will that be a factor when decisions are taken about its use?

Chief Superintendent McEwan

It will be interesting to see the technological advancements. The committee will not have missed the fact that monitoring is not control and is retrospective. If somebody does not adhere to the bail curfew, we are not aware of that in real time; it becomes apparent many hours later—if not longer than that—via the company, which reports the matter. The question that concerns me is what the individual is doing during the time when he or she is breaching their curfew or other conditions. It is not real-time control; it is retrospective monitoring, unless there are technological advancements that will bring the information to the fore more quickly. Those would be really important.

Liam McArthur

We touched briefly on data protection, and there are provisions in the bill that grant ministers powers to set this by regulation. Is that sufficient? Obviously, a range of parties will be involved the electronic monitoring process, and they may require to share that data. There will be a mix of public bodies and private companies, and possibly voluntary organisations, operating in the area. Does that give rise to any concerns?

Chief Superintendent McEwan

Certainly not from any of the information that I have read. We need to share information as widely as possible, within the limits of the legislation. I am comfortable that that has been covered and discussed.

David Strang

Is the question about ministers being able to make regulations in relation to data protection, rather than that being done by primary legislation in Parliament?

Liam McArthur

It is a combination of both. The concerns around data protection have been addressed, with the bill taking up the way that information will be shared, and guidance is to follow. There is an on-going debate about the level of scrutiny of that process. Do we need something more explicit in the bill about how information will be handled, or are you comfortable that the process will arrive at a solution that will address the concerns that inevitably arise about the way in which data is shared?

David Strang

The latter, I think. It is sensible to have the ability to introduce procedures and protocols for data sharing, storage and so on. As we know, the electronic world is changing very rapidly, and I do not think that you would want Parliament to have to legislate every time there was some new app or way of sharing information. The provisions are sufficient, but you are right that there is an issue about what happens to the data. The companies that are responsible for electronic monitoring, particularly with GPS and the alcohol monitoring bracelets, will capture a huge amount of data. It is really important that there is sufficient oversight and scrutiny of what happens to that data.

Liam McArthur

I absolutely take your point about the way that technology will change and how the issues arising from it will evolve over time, but is there perhaps a need to set out broader principles that will adhere for some time to come, in terms of the way in which monitoring data is used and shared?

David Strang

Not in my view.

The Deputy Convener

I ask Ruth Inglis whether the SCTS has protocols with regard to data sharing, and whether it is planning to change those, given the new regulations.

10:30  

Ruth Inglis

Which regulations are you referring to?

The Deputy Convener

The new regulation that is coming into force on Friday—the general data protection regulation.

Ruth Inglis

Oh, the GDPR. Yes, the courts are responding to the GDPR. Various practices are being implemented to ensure that the service follows the new regime. I am not in a position to provide much detail on that, but I can certainly write to the committee, if that would be helpful. Are there any particular aspects that you have concerns about?

The Deputy Convener

I would just like a general overview of what you are having to do in that regard. If you could update us on that, that would be great.

Ruth Inglis

Okay.

The Deputy Convener

Stewart Stevenson has a supplementary.

Stewart Stevenson

As we have talked about GPS, I thought it would be useful to put on the record the fact that GPS works better in rural areas than it does in urban areas because, to get a two-dimensional fix, it is necessary to be able to see three satellites. In urban areas, buildings will obscure the view of satellites, whereas in rural areas they do not, albeit that most of the GPS-enabled equipment also has supplementary fixing using mobile phones and devices that make possible interpolation between adjacent GPS captures.

My basic point is that GPS works better in rural areas than it does in urban areas, and it is important that we do not think otherwise.

Liam Kerr (North East Scotland) (Con)

I want to ask the witnesses about resourcing but, before I do, I will go back to another of Stewart Stevenson’s interesting interventions, in which he asked about the statistics. Mr Strang, you said that the stats on prisoner numbers across Europe were broadly comparable and that the number of remand prisoners was included in those stats. You said that about 20 per cent of our prison population is on remand. Do you have any idea whether an equivalent level of the prison population is on remand in other European jurisdictions? Do the stats show, for example, that there are significantly fewer people on remand in the rest of Europe?

David Strang

I do not have those statistics. The international centre for prison studies at Birkbeck College at the University of London puts out those statistics, and the information that it provides is comparable across not just Europe but the globe. All that data is available, but I do not know whether the remand rates in other countries are comparable.

Liam Kerr

Thank you.

I will move on to the general issue of resources. The introduction of electronic monitoring will represent a pretty significant change in how we do things, and implementing it will put a call on resources. That might include the provision of equipment, the training of staff, changes in the way in which the courts operate and changes to social work departments, which Liam McArthur mentioned.

Do any of the witnesses have views on whether the whole area of electronic monitoring has been appropriately costed and whether sufficient resources will be made available? Can I throw that to you, Mr McEwan?

Chief Superintendent McEwan

You certainly can. As I mentioned earlier, we have looked at what we anticipate will be the back-office support requirements, which will not be significant. However, we have yet to fully understand what the impact will be at the tail end of the pipeline. We are not sure whether the number of reports to sheriffs with a view to the issuing of warrants will increase as a consequence of individuals breaching electronic monitoring conditions, and we need to do some more evaluation to understand what will happen. It is very difficult to know, because a fair proportion of the people in question would previously have been put in prison. If they come out on electronic monitoring, the likelihood of them breaching that is finger in the air stuff, to be honest.

David Strang

My answer is that we need to take a long-term look at costing.

One prison place for a year costs roughly £35,000 so, if we reduce the number of people who occupy prison beds, there is clearly an economic benefit. I am sure that the Scottish Prison Service would like me to say that that resource is not freed up immediately—I am not saying that, if there is one person fewer, the service can hand over £35,000 a year. However, for society, it is much more expensive to keep someone in prison than it is to supervise them on electronic monitoring. I suppose that we need a spend-to-save approach because, if we invest in community supervision that is successful and reduces the number of people in prison, that frees up resource. It is a much broader issue but, in my mind, we need a resource shift from spending on prisons and custody to spending on community disposals and community support. It is a longer-term solution.

Ruth Inglis

As I mentioned, we contributed to the financial memorandum. I referred to the costs of approximately £800,000 per annum for the sheriff courts and £9,500 for the JP courts. However, I did not mention the additional new intimation duty that schedule 1 to the bill places on the clerk of court, which will also have resource implications for the SCTS. We indicated in the financial memorandum that, taking into account the anticipated increase in the number of community disposals that will be made in consequence of the bill, and estimating that 20 per cent of relevant community disposals relate to persons who are already subject to an existing order, there will be additional staff-time costs for the SCTS of around £232,000 per annum.

On your question about whether the bill has been sufficiently costed, from our perspective, the disposals that are listed in section 3 have been sufficiently costed. However, if the list of disposals is extended by way of the regulation-making powers, those new measures will need to be costed by the SCTS as well. If the list of disposals is extended to include things such as electronic monitoring as an alternative to remand or fines, those measures will have significant resource implications for the SCTS, and we will need time to cost them and ensure that funding is available. That may well come further down the line when and if ministers exercise the regulation-making powers.

Liam Kerr

Is it fair to say, then, that it is not possible at this stage to say how much the changes will cost the country? Specifically on Mr McArthur’s point about social work departments, that exercise has not been done.

Ruth Inglis

Obviously, I can comment only on the SCTS. The disposals that are listed in section 3 at the moment have been costed for the SCTS. However, further down the line, ministers could choose to exercise their powers to add to the list of disposals things such as electronic monitoring as an alternative to remand or fines, and the details of that have not been costed. In response to the consultation, we provided estimates on that. With regard to electronic monitoring as an alternative to fines, we gave a figure of £2.2 million per annum. There could be a big impact on the SCTS, so we would need to be involved fully in the costing of those measures further down the line.

Liam Kerr

Let us just say that there are fairly significant costs. I accept Mr Strang’s point that it is almost front loading the costs for payback later, but does any of you have an idea of where that resource will come from? I ask Mr Strang specifically whether there is any suggestion that it could come from the prison service.

David Strang

It is not for me to comment on resourcing. My job as the chief inspector of prisons is to inspect prisons and to report on the conditions and the treatment of people in them. I see it as a bigger challenge that we need to shift more resourcing towards prevention and support and away from imprisonment and punishment. However, as with any funding decision, it is a political decision about priorities. Politicians have to decide about health, education and justice; I am just advocating that more investment in electronic monitoring and supervision in the community will, in the long run, produce better outcomes for society and lower crime rates, and it will save money because we will be incarcerating fewer people. It makes sense to me in both the long and the short term.

Liam Kerr

Does anyone else have any comments on where that resource should come from? The Courts and Tribunals Service has laid out some fairly clear costs, but have you any idea where that money will come from?

Ruth Inglis

Yes. We have laid out the costs and hope that, if we are required to implement the policy, the funding will be made available for that.

Maurice Corry (West Scotland) (Con)

We have received evidence highlighting the importance of decisions about electronic monitoring being based on professional assessment of support needs and risks to others. Do you have opinions on whether certain types of offending, such as domestic abuse, give rise to particular difficulties with such monitoring?

Chief Superintendent McEwan

Are you asking whether I have a concern about that?

Maurice Corry

Yes. Is such monitoring more problematic in domestic abuse cases, given that the guilty party is in the community and is around although they are being monitored?

Chief Superintendent McEwan

Domestic abuse is not my area of expertise. Your question goes back to my original point that serious and violent offenders should be kept in prison—there is no doubt about that in my mind. However, we should perhaps have a different, more innovative approach to those who commit offences that are less serious, and electronic monitoring seems to be one viable option, but it really must have wraparound support.

The bill talks about sex offenders and the introduction of electronic monitoring in relation to sexual offences prevention orders and sexual harm prevention orders. Electronic monitoring is now another viable technique to be considered, but it cannot be implemented in isolation; rather, it must be used with other measures of control that are at our disposal under the SOPOs and SHPOs. Monitoring is an additional tool that we can consider using as part of our tactics.

David Strang

I understand the concerns of victims of domestic abuse. There is comfort in knowing that the accused is in custody—I understand that. However, electronic monitoring provides a greater ability to supervise people in the community. Exclusion zones can be set up, so it can be a way of protecting a victim of domestic abuse for a certain period; it would not go on forever. If someone remains in the community and they have a job, they can carry on working and may still be able to see their children and so on. The approach can be tailored to the individual circumstances of each case.

Maurice Corry

Do you think that there are positives to it?

David Strang

Yes, I think so.

Maurice Corry

Are there any other comments?

Ruth Inglis

As it is a policy issue, the SCTS would not have a comment on that question.

Roddy Flinn

I agree.

The Deputy Convener

Chief Superintendent McEwan, do you think that the police will have a role in responding immediately to breaches in domestic abuse cases? Will that put a strain on your staff resources?

Chief Superintendent McEwan

It might do. That is the vital element of electronic monitoring. Unless it is something that I have not seen, there is no real-time ability to report a breach, which is, arguably, the most important part of such terms. If someone breaches their curfew, DTTO or geographic boundary, the questions are about why they are doing so at that particular time. Someone should immediately be alerted and there should be some sort of proactive response to understand why the individual has breached their terms. To my knowledge, that does not happen currently. I am not sure whether that will be part of the future technology, but it should be.

10:45  

John Finnie

I will follow up that issue with Mr McEwan. It seems to me that the risk assessment would always be an important factor in cases of domestic abuse. Would Police Scotland be involved in any risk assessment associated with a decision to allow a person to be subject to electronic monitoring? If so, there would be the potential to say that electronic monitoring might be inappropriate, particularly in domestic abuse cases, given the circumstances or the depiction of past conduct.

Chief Superintendent McEwan

I do not anticipate that Police Scotland would be part of the risk assessment. My understanding of how it would work is that somebody would go to court and be convicted of an offence or granted bail and we would report the circumstances to the Crown and the court. It would then be for the sheriff, or the Scottish Prison Service in relation to a home detention curfew, to decide, on the basis of the risk assessment, whether it would be legitimate, proportionate and right to impose electronic monitoring. Police Scotland is at the far end of that response.

John Finnie

I will clarify my question. There would be a role for criminal justice social work in that decision, and it would inform the court.

Chief Superintendent McEwan

Absolutely.

John Finnie

Would there be liaison at that point? I appreciate that it is not your area of work at the moment, but do you understand that there would be liaison between criminal justice social work and the police service at that point?

Chief Superintendent McEwan

There would be criminal justice social work reports, and we would submit a police report. The Crown, the courts and the sheriff would assimilate and comprehend those reports, I guess, and make their decision.

John Finnie

I will move on to a question about compliance and enforcement, which may be for Ms Inglis or Mr Flinn. What categories would be exempt from consideration for electronic monitoring? If someone had previously breached court undertakings, would that mean that, by default, they were unsuitable?

Ruth Inglis

I am not entirely sure about the answer to that question. I could write to the committee about it.

Roddy Flinn

I suspect that the matter is for the decision of the individual judge.

John Finnie

Having regard to what?

Roddy Flinn

There would be a number of factors to take into account. Obvious factors would be the seriousness of any breach and whether the breach was repeated. Another factor would be the advantages of continuing with whatever regime was trying to help the guy. It feels like a judge-led decision.

Stewart Stevenson

We have covered electronic monitoring quite a lot. The first 16 sections of the bill cover that subject, but they do not cover the electronic monitoring of people who are on bail and who will be on remand. Should they do so?

David Strang

In my view, yes, they should. I am disappointed that the bill does not say more about the electronic monitoring of people who are on remand and awaiting trial. There is scope to benefit from extending electronic monitoring to include people who would otherwise be in custody on remand.

Stewart Stevenson

Looking at those 16 sections, it strikes me that the section on infringements, which applies to offenders, might have to be cast differently for people who are on bail. Perhaps Chief Superintendent McEwan has a view on whether that is a reasonable proposition.

Chief Superintendent McEwan

Will you expand the question a bit?

Stewart Stevenson

Well, I do not have an idea—that is what it boils down to. The infringements section talks about recall for someone who is on parole. However, the bill cannot talk about recall when a person is on bail, because they have not been convicted of any offence at that stage. Therefore, the provisions around infringements will need to be different. I wonder whether the panel has a view on the matter. They may not. Perhaps I will have to ask the minister or others that question in due course—if so, we can move rapidly on.

Chief Superintendent McEwan

The element that is missing currently is the power of arrest, which goes back to the need for a proactive response. The police do not have the power of arrest, should any individual breach their curfew. For example, if we come across an individual who has breached a curfew—and if we are aware that they have breached a curfew—we do not have the power to arrest that individual at 3 o’clock in the morning. A report needs to be submitted to the respective sheriff, who then issues a warrant, so the individual is left to go on their way. The power of arrest should be considered.

Stewart Stevenson

It sounds as though you are talking about section 13(3), which states that

“No offence constituted by reason of breaching the disposal ... can be committed”

and then refers back to “subsection (1)”, which describes it. There is a gap in the bill in relation to offenders that would apply equally in the case of bail.

Chief Superintendent McEwan

Yes.

Stewart Stevenson

Right. I do not have any more to say on that subject.

Liam McArthur

The issue is more fundamental. The name of the bill is the “Management of Offenders (Scotland) Bill”, so it would not be competent to deal with the electronic monitoring of those on bail, as they are not deemed to be offenders. That was certainly the view of some of our witnesses at an earlier evidence session. Mr Flinn is nodding.

David Strang

That sounds like a technical legal point.

Liam McArthur

I have found that such technical legal issues tend to get in the way. Is that the view of the SCTS?

Ruth Inglis

We would simply make a point about the terminology and the use of the word “offender”. Some of the orders to which electronic monitoring can be added, such as SOPOs and sexual harm prevention orders, are civil in nature. The Government will need to look at that. Also, if ministers made regulations to extend the availability of electronic monitoring to pre-trial situations, it would not be appropriate to refer to the individual as an “offender”, because, at that point, they would not be an offender. That issue will need to be considered.

Liam McArthur

Is it the view of the Scottish Courts and Tribunals Service that that would not be competent in the context of a bill that is called the “Management of Offenders (Scotland) Bill”?

Ruth Inglis

I do not have a view on the competence of the bill. We simply make the point that the wording needs to be looked at.

David Strang

In the written submissions to the committee, others have said that “offender” is an unhelpful word and have suggested that the bill should have a different title. I do not know how easy or difficult it would be to change the title of the bill but, if that is a consequence of including bail, so be it.

Liam Kerr

I have a brief question for the SCTS. In your written evidence, you talk about a 2005-06 pilot scheme that involved electronic monitoring as a condition of bail. The Scottish Government concluded that it was not helpful. Are you able to share any more details of that scheme? Why was it not helpful? What went wrong, if I can put it that way?

Ruth Inglis

I understand that the pilot scheme in 2005-06 was carried out in four courts throughout Scotland and that, on the back of the pilot scheme, there was an evaluation report. My very general understanding is that, although the scheme seemed to work, there were limitations. Indeed, those limitations were referred to when the provisions that enabled the pilot to take place were repealed by the Criminal Justice and Licensing (Scotland) Act 2010. It was pointed out that electronic monitoring was not used very often, that a high cost was attached to it and that it placed a huge burden on enforcement agencies. Our written evidence simply makes the point that, as such pilots were run a decade ago and were deemed not to have worked, we struggle to understand the rationale for using electronic monitoring now. We are simply making that point without passing any judgment on the proposal.

Liam Kerr

That is useful. The committee will need to be cognisant of that going forward.

Stewart Stevenson

I make the observation that the short title can be amended by an amendment to section 50. The difficulty lies with the long title, because it attempts to capture the general principles of the bill and the Presiding Officer is often reluctant to allow it to be tampered with significantly, although that has happened.

The Deputy Convener

Thank you. We move on to disclosure of convictions, and the first question is from Liam Kerr.

Liam Kerr

As a general principle, the policy memorandum makes it clear that the aim of the bill is to balance the right of an offender not to have to disclose any criminal past against the protection of the public. Do any of the witnesses have a view on whether the bill, as drafted, achieves that balance?

David Strang

I am not sure that I see it as balancing two different needs, as if what is good for the person who has been convicted and what is good for the victim are necessarily opposed. It is good for everybody if rehabilitation works. If someone who has offended and been convicted manages to be rehabilitated and live a constructive life that does not include committing offences, that is in the interests of the potential victims who will not become victims, and in the interests of previous victims. I therefore welcome the provisions, because it is helpful for people to change the course of their life, to get a job and to be rehabilitated. I do not see that, by somehow giving an advantage to the offender, you are diminishing the rights of and benefits to the victim. When it works and someone gets a job and makes a constructive future for themselves, that is of benefit to them, to potential victims, to previous victims and to society as a whole.

Liam Kerr

As no one else has a comment on that, I will bring Mr Strang back in. Last week, the committee heard about the diminishing predictive value of convictions over time. Are you comfortable that the proposed disclosure periods take sufficient account of the predictive value of convictions?

David Strang

The proposals will only affect short sentences; longer sentences will not be affected. You are right that a previous conviction is not a good predictor of future behaviour, particularly after time has gone on. A submission to the committee talks about how someone who has not been convicted of an offence for seven to 10 years is no more likely to offend than someone who has no previous convictions. Those are broad statistics rather than individual cases; it is an inexact science, and the problem with your question is that you are extrapolating from individual cases to the broad population. We can talk about the percentage chance of reconviction in relation to the population, but that does not mean that an individual is 50 per cent more likely to offend than not. You have to look at each individual case on its merits.

To answer your question, I think that the proposed changes are satisfactory.

Liam Kerr

Does that not highlight one of the problems with saying that a blanket disclosure period is appropriate when, as you have rightly pointed out, individuals behave in individual ways? Is a blanket disclosure period the right method? Could there be something else?

David Strang

You need to have consistent rules. The principle of people being able to put their past behind them and make a fresh start is helpful. You have to draw an arbitrary line somewhere. For less serious offences, which are reflected in less serious sentences, it makes sense for the disclosure period to be less than it would be for a long sentence for a serious crime. I would not criticise the principle of having a disclosure period.

11:00  

Liam Kerr

Let us say that we base the starting point for the disclosure period on the sentence alone—I accept your point that the offence creates the sentence, which creates the disclosure period. Should the disclosure period be based explicitly on more than just the sentence? Should it be based on the severity of the offence, for example?

David Strang

That is a different issue from that of disclosure of a conviction. There are other ways in which people who have committed particular offences are banned from working with vulnerable children, for example. You are asking a question about a different issue from what is proposed in the bill. I think that what is in the bill is a step in the right direction.

Maurice Corry

Will the bill do enough to change attitudes towards the employment of people with convictions? Could something more be done, separate from the bill, to change companies’ and employers’ recruitment practices?

David Strang

That is a huge question. Yes, I would like you to legislate to remove the stigma against people who have been in prison. You are absolutely right: people’s attitudes are, of course, much more important. It is interesting that people who have been successful in getting jobs having left prison are often employed by a previous employer who knows them, who knows that they were a decent worker, who knows that they have offended and gone to prison, and who has welcomed them back, or they are employed by their brother, uncle or cousin. If someone has a criminal conviction and a prison sentence behind them, irrespective of disclosure issues, that is an unintended but real barrier to rehabilitation, and that is perfectly understandable. If an employer has two suitable people, it is a natural instinct to say, “I’ll take the one who has not been in prison, because they are likely to be a better worker and more honest.”

You are absolutely right to ask that question. There are lots of judgmental attitudes and there is stigma. That is why it is so difficult for people to get out of a life of crime, particularly if they have had short sentences and have gone round the system. It is really hard for such people to get a job unless someone can give them a leg up into employment. That is the experience of a lot of people in prison.

Maurice Corry

We can quote the examples of people such as Sir John Timpson and companies such as Greggs and Virgin Trains. They have managed to cross that barrier and very successfully take people on.

David Strang

Yes, they have. I think that that has happened more down south than in Scotland, but they are good examples. They have set almost a moral lead and said that they will give people who have served a prison sentence a second chance.

Chief Superintendent McEwan

I do not have any views on that. From my perspective, the crux of the matter is that the rules of disclosure need to be clear. The incidents that I have been involved in over the years in which people have failed to disclose convictions when they should have done have often been the result of a misunderstanding of the rules of disclosure. The rules need to be crystal clear for everybody to abide by them.

I agree with the principle that, if a person has been convicted of a more serious offence, there should be a longer time before the conviction becomes spent. If there has been a less serious offence, the timeframe should be shorter.

Maurice Corry

Does Ms Inglis have any comments to make?

Ruth Inglis

No. The SCTS’s written evidence covered only part 1 of the bill. We do not have any comments to make on part 2.

Maurice Corry

Okay. That is fair enough.

Stewart Stevenson

I want to go back to what Chief Superintendent Garry McEwan said and to look at section 5 of the bill in particular, but not only at section 5, as the same phrase is used in two different places. The heading for section 5 is “Requirement with licence conditions”. Section 5(5) says:

“The Scottish Ministers must ... explain to the offender the purpose mentioned in subsection (4)”—

in other words, what the conditions are—

“and ... warn the offender of the consequences of failing to fulfil the obligations”.

This is my 265th Justice Committee meeting, and I wonder whether part of the problem is whether people in a confusing, novel situation absorb and understand what they are being told. Should there be an obligation to check that what is being said is understood? It strikes me that a lot of people will find it fairly challenging to understand what the conditions mean for them. Is that a fair observation on my part, based on your experience of dealing with offenders who are in breach? Is that imagined confusion genuine? Is there scope to do a little bit more to tackle that at the point when conditions are put in place?

Chief Superintendent McEwan

I think so. My experience is from many years ago, in relation to Disclosure Scotland. I found that, at times, people failed to disclose the right information through a lack of understanding. Some may have done so intentionally, but it was mostly because of confusion and a lack of understanding. Some individuals struggle to understand some of the requirements that are placed on them, and any help that we can provide them with would be advantageous.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

My question is on an issue that has not been fully covered in the responses so far. Mr McEwan, I note that the Police Scotland submission says that

“Many people who committed crimes in their youth never reoffend”.

The bill seeks to address that important point. Do you consider that it does so? Would it allow people who have committed crimes in their youth to be able to move on? Could any changes be made to enhance that aim?

Chief Superintendent McEwan

People can offend at any point during their lives, and they might do so only once. The bill’s aim is to look at ways, other than remand, of managing individuals, so that, for example, they do not lose their job or house and still get to see the kids. It is about trying to balance the needs of and risks to the victim with giving some offenders who have committed isolated or lower-level offences a second chance before remanding them.

Stewart Stevenson

This Friday, the general data protection regulation comes into force. My question relates to the status quo, as well as to any changes that might be made. A disclosure check might not reveal a spent conviction, but the perusal of newspaper archives would do so—in many cases, quite readily. Do you have any views on whether the GDPR creates a general right to be forgotten in relation to published information? Is that beyond the scope of the panellists’ understanding?

Chief Superintendent McEwan

It is certainly beyond the scope of my understanding; I would not attempt to answer that one.

David Strang

I do not have views on that topic.

Stewart Stevenson

I suspected that that might be the case, convener.

The Deputy Convener

The bill does not propose any changes to higher-level disclosure checks. What are your thoughts on that issue? Do you agree with that approach?

David Strang

Yes, I think so. Those people are likely to be higher risk, so that approach is appropriate.

The Deputy Convener

As there are no other views, that brings us to the end of this useful session. I thank the witnesses very much.

We will have a brief break to allow a changeover of witnesses and those on our second panel to take their places.

11:09 Meeting suspended.  

11:14 On resuming—  

The Deputy Convener

I welcome our second panel, from the Parole Board for Scotland: John Watt, chair, and Colin Spivey, chief executive. I thank you for your written evidence, which is very useful. We move straight to questions, starting with a question from Mairi Gougeon.

Mairi Gougeon (Angus North and Mearns) (SNP)

I am glad that we have you both in front of us today, because we have had some questions about the Parole Board, so it will be good to hear some answers from its representatives. To start, could you tell us a bit about how the Parole Board currently operates and what the proposed changes in the bill will mean for it?

John Watt (Parole Board for Scotland)

How the Parole Board currently operates? Well—[Laughter.]

Mairi Gougeon

I know—it is an easy question to start with. You can just tell us how it operates in the context of the proposed changes.

John Watt

At present, the Parole Board operates under the Prisoners and Criminal Proceedings (Scotland) Act 1993, which lacks detail about what the board ought to do, how it should do it and what some of the tests should be. In addition, the act says nothing about governance, so we have had to pretty much invent a governance system, which is not ideal. We rely on a lot of case law, mostly English, in relation to the tests that are to be applied for some releases and what those tests mean. Clarity is absent from much of the current legislation.

We hope that the new legislation will reinforce our independence. The Worboys case went into this in some detail, as previous cases have done. The board is a court, and it needs that independence, which—in my view—needs to be reinforced. The public and prisoners need to understand what tests are to be applied in relation to each type of release so that they understand what is happening. The public ought to understand that more widely, and the media certainly should; it is apparent from some media coverage that there are big misunderstandings.

The current membership prescriptions are unhelpful because they create all sorts of difficulties for us. From reading Official Reports of the committee’s previous meetings, I dare say that there will be some questions about that issue, so I will leave it to one side for a moment. The new provisions will give us more certainty and promote a better understanding of what we do, because many of the changes reflect what we actually do. A key element is that the legislation will reinforce our position as a court, which is widely misunderstood. The authorities see it clearly enough, but the public do not read case reports. We are a court and need to be treated as such, and the changes will bring us a long way towards that.

Mairi Gougeon

I agree with what you have said about public understanding, which can benefit from committee sessions such as this one. When we undertake scrutiny, we get to hear a bit more about the general workings of the Parole Board and what the proposed changes will mean.

You talked about governance and how you have had to arrange it yourselves. I had highlighted that part of your written evidence, in which you suggested that

“the Bill should ... set out arrangements for governance through a Management Board”

that would be distinct from the Parole Board. Is it the case that the governance currently operates in that way and you would simply like it to be outlined in the legislation?

John Watt

Yes. The name “Parole Board” has caused all sorts of problems in the past. The board has been treated like a management board—not deliberately, but through inattention or lack of understanding. The word “Board” in the title creates problems. We have what we call a management group—I did not want to call it a board because it would then be the board of a board, and matters would become unduly complicated.

We do not yet have non-executive members. In the past, there were 30 members of the management board, which is clearly unworkable. We consulted our legal advisers and came up with a model that set up a Parole Board management group, which is essentially a management board. We made it clear in a new memorandum of understanding with the Scottish ministers that that is what we would do, and that members at large would have purely judicial functions and no management functions. That is essentially how we did it. We took what we thought was best practice and set up the best arrangement that we could. I anticipate that, in future, the group would simply be formalised as a management group with a requirement for some non-executive members from outside the board.

Mairi Gougeon

But you would like to see that laid out in the legislation.

John Watt

I would like to see it set out in statute, along with appropriate wording about the board’s independence, which would cover both its independent status and a way of governing that independent status. I do not think that we could have one without the other.

Mairi Gougeon

The submission that we received from the Sheriffs Association noted its concern that

“the Bill does not propose to re-constitute the Parole Board for Scotland as a statutory Tribunal within the ambit of the Scottish Courts and Tribunal Service”.

What are your views on that? Would you prefer to see that?

John Watt

I would not necessarily prefer to see it. I think that it was the senators of the College of Justice rather than the sheriffs who said that. Was it not in their response?

Mairi Gougeon

Well, the submission that I have in front of me is from the Sheriffs Association.

John Watt

Whoever it was, the issue was discussed in about 2013 or 2014, when the tribunals were being restructured. At that time, I rather thought that we would be absorbed into the SCTS. However, very early on, it was made very clear that that would not happen, primarily because the SCTS did not have the capacity to take on any more tribunals and the Parole Board was so far down the list that nothing would happen in the foreseeable future. My understanding then was that there were also concerns about compatibility, in that some in the SCTS were concerned that the judicial body that decided on releasing people from prison would be in the same organisation as those who put them in there in the first place. I was not quite sure what the reason was but, on the basis that it was so far into the distance that it was unlikely to be my problem, I put it to one side.

Since then, the position has changed. Towards the end of 2017, we thought that that door might be opening slightly, so the Scottish Government had some discussions with the SCTS and the Lord President’s office. However, it was made clear that it was not going to happen. I do not know what the position is just now. As far as the Parole Board is concerned, it is not on the horizon and is not a realistic prospect and so, to that extent, I have put it to one side. In principle, I cannot see a problem. However, in practice, we would have to understand a lot more about the circumstances in which we might be absorbed, how the absorption would take place and what it would mean for the board. I have not applied my mind to that.

Therefore my answer is that, although in principle I see some merit in that proposal, it does not seem to be a realistic prospect at the moment.

Mairi Gougeon

I have a final question, which is on evidence that we heard in previous sessions. What is your view on imposing a six-month time limit on a prisoner making representations about recall from release on home detention curfew? In previous evidence, we heard concerns about such a time limit being put in place. Do you foresee that as being an issue? Do prisoners on recall tend to do that quite a lot anyway, or does it take a long time for them to get around to doing so?

John Watt

No, it is not really an issue. If I may say, from my reading of the Official Reports of previous sessions, there has been a misunderstanding about home detention curfew. It can happen only after the Parole Board has made a decision that a determinate prisoner can be released on parole licence. Such a decision may take place, say, eight or 10 weeks before the parole qualifying date. In the period between the decision and that date, the SPS can release a prisoner on home detention curfew. That will end on the parole qualifying date because, by that time, he or she will be out on parole. Therefore HDC operates only in that window. We could almost close the window at the parole qualifying date because it is not relevant any more. The six-month limit was a bit of a compromise. I might have argued for a shorter period, but the question is academic by the time that six months have passed.

As I understand it, the original reason for that was that SPS rules prevented anybody who had been recalled from an HDC from getting it at any time in the future. For example, an HDC recalled in one sentence would count against a prisoner in another that might be imposed three, four, five or six years down the line. The only way in which they could deal with being refused HDC then would be to seek to appeal the original decision to recall them on HDC. We have some figures that show that such appeals were taken up to nine years after the event. That was only because the prisoner had not appealed at the time because they had not understood the consequences. As I understand it, that rule has gone now so it is no longer significant. A six-month limit creates no problem given the current position. It might even be too generous.

Mairi Gougeon

Thank you very much for clarifying that.

The Deputy Convener

We have also heard in evidence that there should be a single test for decisions on the release of prisoners. What is your view on that?

John Watt

Our view has varied over time. We found it difficult to formulate a single test.

To depart slightly from the question, every release ought to have a statutory test that is applied to it, but not every release does. We have thought about that and taken some legal advice. We consider that there is a single test that may be applied, which is the one that presently applies for life cases:

“The Parole Board shall not give a direction”

for release

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

That sets out in a single test what we have to consider: the protection of the public against the interest of the prisoner not to be confined. A single test would be best and most useful. That is the single test that we propose. Failing that, there should be a test for each release.

Daniel Johnson

The point about the board’s independence is interesting. Is it important as a matter of principle, as a matter of status, as a safeguard against some future Administration or for some combination of those reasons? Will you explain a little bit more why you think that it is so important?

John Watt

It is a matter of principle. If we accept that the board is a court, it must be able to demonstrate its independence. The issue is not so much that it is independent—I do not think that anybody thinks that it is not—as the appearance of its independence. From what they see and know, the public must have confidence that the board is independent and, if they do not see, read or know what provisions are in place for that independence, there is at least a risk that the board will not have the appearance of independence.

If I remember correctly, some consultation responses mentioned the need for the appearance of independence. It is certainly reinforced in the Worboys case. It is really only about stating for posterity the position at the minute. It ought to be recorded for the future. It is a matter of principle and protection.

Does that answer your question?

Daniel Johnson

It does. Thank you—that is useful.

I will also ask you in a little bit more detail about the test. In your written submission and in your response to my question, you raised the Worboys case. The reason why that was so controversial and why there was an outcry is that, fundamentally, the public did not understand why or how the decision was made. A test would help. You laid out one parameter for the test. Is that sufficient? There are other parameters that the public would probably expect to be used. Public safety is one, but the risk of reoffending and, I suggest, whether the individual has reformed and feels remorse for the crime are others. Could those elements be added to such a test?

John Watt

No. You would not add those to a test because it would become completely unmanageable. The board takes those factors into account when making a decision, of course. The test that I read out has been examined by courts over the years and has been expanded and explained. Therefore, the things that the board takes into account include previous offending, conduct in prison, recommendations from social workers and the extent to which the offender has addressed his offending behaviour through programmes.

I see no reason why that ought not to be published somewhere as part of the board’s bread-and-butter work, but it should not necessarily be in the test. Those factors relate to how the test would be applied. For example, the board must be satisfied that continued imprisonment

“is no longer necessary for the protection of the public”.

You may ask, “Protection from what?” It is the protection of the public from the risk of harm. You may then ask, “How do you define ‘risk’, and how do you define ‘harm’?” The courts have done that over the years. “Risk” is loosely defined as contingent possibility, and “protection” is protection from harm. The courts have been notoriously slow to define what that means, but it is generally accepted that it has to be risk of physical harm and sexual offending. We think that, if the case merited it, that could move into such areas as psychological harm. It is a philosophical discussion that we could pretty much have all day, but those are factors to be taken into account in applying the test.

11:30  

If the board does not take sufficient factors into account—as in the Warboys case, for example, where the dossier omitted certain key documents and the board failed to take account of the importance of outstanding charges—the court can intervene and ask for the decision to be taken again, because the board was wrong when it declined to take account of outstanding charges.

The board in Scotland does that. That is part of our guidance that nothing is unavailable as evidence, and everything with a bearing on risk can be considered. The only question is what weight is applied to it.

The answer to your question is that such information should appear somewhere, and the public should know about it. It could go on the board’s website, for instance. We are in the course of revising all our guidance, which will be published on the website in due course. That kind of thing will be included.

Daniel Johnson

That is a very interesting suggestion. Would you like the bill to contain a requirement for the board to publish the factors and how it applies to them, even in an illustrative way, rather than in a prescriptive manner?

John Watt

We are going to do that, so I do not really mind one way or the other. It would perhaps be better if that was in the rules, rather than in the primary legislation.

Daniel Johnson

You are saying that the factors might be subject to secondary legislation.

John Watt

The factors would not be, because you cannot legislate for what factors the board will take into account. Every case is different, and there will be a range of factors. All I can say is that no factor would be omitted in advance. We cannot say in advance what we will or will not consider. It would be difficult to express it. My preference would be to leave it to the board to publish that information. Then, if the Scottish Government or the Parliament thought that there was a pressing need for more detail to be in the public domain, you could legislate at that point, possibly.

There is a whole dose of issues around transparency and allowing people in to see proceedings in process. That is probably a better way of allowing the public to understand what we do and how we do it.

Daniel Johnson

Indeed. In a previous evidence session, Douglas Thomson, who I believe is a previous member of the board, made the suggestion that minutes—albeit in a redacted form—could be, and perhaps should be, published as a means of achieving that transparency.

John Watt

Yes. Prior to the Warboys case, we were thinking about that and about how we could involve victims more. We had reached the point of revising our decision minutes so that they could be redacted more easily, with a view to publishing them on the website. Douglas Thomson said two things in quick succession, about public hearings and redacted minutes—but obviously we cannot have both. I have no problem at all with redacted minutes. That would be a good thing, and we are part of the way down that line already.

Daniel Johnson

You were making the suggestion that there should be some sort of test set out in the bill, albeit that the detail might be provided in secondary legislation. Is there sufficient evidence from the Scottish Government’s consultation for such a test to be formulated? It would obviously have to be demonstrated that there is public support for the test.

John Watt

There has to be a formulation of a test. The courts have hesitated to define the test too closely, and I would counsel against defining it too closely—in either primary or secondary legislation. I was suggesting that it should be left to the board to publish its guidance. Then, somewhere down the line, the court might say that, in a particular case, the guidance was wrong if it was not applied properly, or if the board had omitted some consideration for the test.

The courts have been slow to define the test more closely—it needs to be open in order to deal with the wide range of circumstances that the board deals with—and I would hesitate to define it more closely. I would leave it to the courts to evolve the test, which they have already done. The test has evolved—mostly in England and Wales, though it applies in Scotland also. It should be a simple test and should be left to the courts to interpret.

Colin Spivey (Parole Board for Scotland)

Although the consultation that took place on parole reform last year did not go into the detail of what the test might be, there was an overwhelming response in favour of there being a clear test and, possibly, a single test. There is an appetite out there for this to be done.

John Watt

We have tests, which we apply at the moment, that derive from cases north and south of the border. For a determinate prisoner, our working test is whether that person’s risk can be safely managed in the community. If there were separate tests, that could be adapted quite simply, as we have been doing that for decades. We developed it over the decades and the courts have been happy with that up until now. Nobody has quibbled about it. It is not good to have a court-derived test such as that. It is possible to set it out clearly even though it is based on that kind of development of the law in a piece of legislation.

Stewart Stevenson

Daniel Johnson brought up the subject of independence and I want to develop that a little.

In paragraph 14 of the written evidence that you provided to the committee, you drew our attention to section 3 of the Tribunals (Scotland) Act 2014. I am grateful to you for bringing my attention to that, because it places a duty on me and the rest of us MSPs. It states:

“The following persons must uphold the independence of the members of the Scottish Tribunals”,

and section 3(1)(d) is

“members of the Scottish Parliament”.

In other words, we have a legal duty. I am not certain whether I have to uphold members’ independence by some positive action every single day or whether it means that I must avoid doing something that would be in conflict with upholding their independence.

In the discussion that we have just had, we talked about the courts evolving the test. If, as you have recommended to us, we were to adopt for the Parole Board section 3 of the 2014 act, one of the listed people would be the Lord Advocate, who is responsible for the courts system. If the courts were to evolve the test that you apply, would there not be, in turn, a conflict? Am I being too devious?

John Watt

You are being too devious, and, if I may, the Lord Advocate is not responsible for the courts system.

Stewart Stevenson

That is true, of course. It is the Lord President.

John Watt

The Lord Advocate is responsible for the public prosecution service. I suppose that the Lord President has to be free to interfere, does he not?

Stewart Stevenson

Yes, ipso facto.

John Watt

That question was perhaps too devious of you. What section 3 really means is that nobody should take any steps to undermine the independence or appearance of independence of the members.

Stewart Stevenson

Is it not quite unusual to legislate for that? When we create a list, the immediate implication is that anybody who is not on the list can interfere with the members’ independence to their heart’s content, including, for example, the police service, which is not on the list.

John Watt

The police cannot interfere because they have no authority to interfere. It is designed to deal with those who might be in a position to take steps in their official capacity to undermine the appearance of independence of the Parole Board. For example, you could see how politicians, especially in Parliament, could be in that position.

Stewart Stevenson

Yes, although section 3(2) goes on to say:

“the First Minister, the Lord Advocate and the Scottish Ministers ... must not seek to influence particular decisions”,

whereas I, as a humble backbencher, can do so to my heart’s content. I am not sure why the distinction has been made.

John Watt

You could do that. However, as the chair of the board, I could have regard to what you say, but perhaps place little weight on it. If you have something to say and it bears on risk, we would be happy to take it into account in a judicial capacity. As a backbencher, you are entitled to argue that the board is not working, needs wholesale restructuring and does not have the appearance of independence. This is a democracy—of course you are free to say that.

Stewart Stevenson

Convener, I think that I have exhausted that one.

Liam McArthur

To follow that up a bit, you said in your written submission that the bill does not go far enough in underscoring the perception of independence, rather than the practice of independence. Where could the bill go further to deliver that outcome?

John Watt

That is more about draftsmanship and principle, is it not? I would leave that to the parliamentary draftsmen.

Liam McArthur

I am sure that we have very clever people who help with the draftsmanship but—

John Watt

We might have to come back to you on that, as I have not thought about it. On independence and governance, section 44 is called “Continued independence of action”. I am not entirely sure what the “of action” part means—“Continued independence” would have been fine. Section 44(1) states:

“The Parole Board is to continue to act as an independent tribunal when exercising decision-making functions”.

The issue would not be dealt with in there. I do not know—I would have to come back to you with some mature thought on that.

Liam McArthur

That would be helpful.

Liam Kerr

I am interested in understanding the Parole Board a little better, so I will just fire some questions on procedure and things like that, if you do not mind. My understanding from reading the evidence is that the Parole Board is in effect a tribunal.

John Watt

Yes—it is a tribunal non-departmental public body.

Colin Spivey

Yes—it is a tribunal NDPB.

Liam Kerr

Two to three people will make a decision, and they are selected from 30-odd people.

John Watt

There are 40-odd now.

Liam Kerr

How are those two to three people selected? How many times does the Parole Board sit and how many times does any given individual sit in a year?

John Watt

The number of days that members sit varies depending on their availability, subject to the rule that it has to be 20 days or more. Practically, there is a scheduler who works for Colin Spivey. Roughly three months in advance, she will ask members for their availability, and they will give it—we have just done that for July. Armed with that availability and the number of cases that have to be dealt with, she will then allocate cases to groups of three. That is how it works, basically. If there are not enough members, she will ask for more; if there are not enough cases, some members will not be selected to work in that month. Members give their availability, and I have to say that they are very good at that—they give a good spread of availability.

I am responsible overall for that. The groupings of members tend to be done at random. We would never keep any member away from another member—or I have not done that until now, but maybe I should never say never. Ultimately, it is my responsibility, but I devolve that to the chief executive, who in turn devolves it to the scheduler, and it then becomes an administrative process.

There are roughly two or three tribunals a day. Some are done by live-link television and some are done in prisons. Each of them involves three members and is chaired by a legal member. On two days of the week—Tuesdays and Thursdays—groups of three members, chaired by a legal member, deal with paper cases. There are about 2,500 cases a year and perhaps 800 or so are dealt with face to face by a tribunal; the rest are dealt with on paper by groups of members who sit on Tuesdays and Thursdays, with the work split equally between them.

On Mondays, Wednesdays and Fridays, it gets kind of complicated. We have smaller groups of two who sit to consider cases of urgency. For example, where a report has been received that an offender in the community has breached a licence condition and can no longer be safely managed, the supervising officer will submit a report and that will go either to a twosome on a Monday, Wednesday or Friday or a threesome on a Tuesday or Thursday. That happens every day of the week so that we can deal with them quickly. Those cases are given priority because they carry an increased level of risk to the public. That is our set-up for dispersing members.

The cases are just allocated. On Tuesdays and Thursdays, someone might be lucky and have 12 or 15 cases, but they might have 20 or 25. The work has to be done and members just soak it up on a swings-and-roundabouts basis.

Liam Kerr

I realise that there is one significantly trained legal member, but what training is given to the lay members, if I am allowed to call them that?

John Watt

They are called general members.

Liam Kerr

What training is given to the general members?

11:45  

John Watt

There are 22 general members. They get a two-week introductory training course, and we have just finished that. It covers risk assessment in detail, of course, and also legal issues, diversity and practical issues, such as how to use the information technology. It also involves in-depth discussion on tribunals and casework meetings, which is what the paper meetings are called. We have created six or eight dummy cases and we go through those in significant detail, discussing all the key issues.

As well as those two weeks of introductory training, there is on-going training. General members shadow other members while tribunals and casework meetings are live to see how they work, and we have a training group that gathers views from members—and from me—as to what training might be required in the course of the year. There are three set-piece training days during the year on key developments, and the next one is likely to be on the fallout from the Worboys case.

Liam Kerr

Do you have a view on whether the proposals will have an impact on members’ ability to dispose of cases?

John Watt

It will have none at all. I have no concerns.

Liam Kerr

I have a couple of final questions. What is the reoffending rate for a paroled prisoner?

John Watt

I am not sure that we have figures for that. We used to gather figures manually, but we moved to an electronic system and, as you might guess, we lost some number-crunching ability. A few years ago, it was something in the order of 6 per cent of prisoners. I give this information with a warning proviso. Something like 6 per cent of offenders who were released on parole licence, which is by decision of the board, were ultimately recalled because they were no longer safely manageable in the community. Predictably, something like 16 per cent of those released on non-parole licence—which is by operation of law—were recalled. It is difficult, because—

Colin Spivey

One of the difficulties is that once somebody has gone past the end of their parole period, we do not necessarily have information on their reoffending. That information will be held elsewhere in the system.

John Watt

I misunderstood the question. I thought you were talking about reoffending while on licence.

Liam Kerr

I was going to come on to that question.

John Watt

My answer was about reoffending while on licence, but reoffending generally would be a much broader issue. The Scottish Government statistical people may hold some information, but we tend not to, if only because it is unhelpful. If we take a decision based on the facts and circumstances of an individual case, that is fine—that is what we should be doing. However, so much can change between that decision and any reoffending that it is hard to link the two. The answer to Liam Kerr’s question is that we do not have the statistics, and I am not sure who would have them.

Liam Kerr

I will find out.

John Watt

I am not sure that they would be helpful to the board.

Stewart Stevenson

I am seeking confirmation of something. Mr Watt said that 6 per cent of people on parole are recalled.

John Watt

That was my general recollection.

Stewart Stevenson

Whatever the number is, I want confirmation that it is perfectly possible for someone to be recalled without having committed an offence.

John Watt

Yes.

Stewart Stevenson

Thank you.

John Watt

Do you want me to expand on that?

Stewart Stevenson

I recall sitting in Saughton prison with six murderers. One of them was very aggrieved to have been recalled from life parole because they had been present while another murder was committed. I sort of understood that situation, but they did not.

John Watt

You are absolutely correct; the basis for the decision is always risk of harm to the public.

The Deputy Convener

I have a final question. We have heard some concern about the fact that the requirement for there to be a psychiatrist on the board has been removed. What are your views on that?

John Watt

We do not necessarily see a benefit in having a psychiatrist on the board, and supplementary written information underlined some reasons for that. We did a recruitment round in 2016 that included psychiatrist recruitment and had two applicants, so not many psychiatrists out there seem to be interested. We appointed one. They give us their availability, which the scheduler tries to match with cases in secure hospitals. However, the psychiatrist is not always available when a case needs to be dealt with.

My view, and I think that of the board, is that board members are perfectly capable of examining medical witnesses—with cross-examination, if need be—to extract the relevant information and request more if necessary. The presence of a psychiatrist is not always helpful to extracting evidence.

I will give you a parallel. In criminal procedure, when an accused person defends a case on the basis that he was insane at the time of the crime, there is no suggestion that the jury cannot decide the case unless it includes a psychiatrist, that the judge ought to be a psychiatrist or that a psychiatrist ought to ask the questions—the people who ask the questions are all laypeople. I would be disappointed if a tribunal of the board could not obtain the right information from a doctor; if it could not, we should be looking for somebody else. The evidence, and how to extract it, is what is important, rather than the identity of the questioner.

Sometimes it is better if laypeople or non-medical people ask the questions. It is a bit like getting an IT expert to do guidance material for a piece of electronic gubbins; it should be a complete idiot who does that. There is merit in exploring the evidence of medical witnesses through lawyers and those with decades of experience of the criminal justice system.

We have six senior mental health professionals on the board, which allows a better spread of availability for cases in secure hospitals. We also have cases that involve complex psychological reports, but it has never been suggested that it should be mandatory to have a psychologist on the board. The reason is that members are capable of exploring the evidence effectively.

The Deputy Convener

That is helpful. Unless members have any other questions, that brings us to the end of the session. Do you have any final statement about your views on the bill and the direction in which is it going?

John Watt

It is very important that the legislation passes and provides us with a more structured framework in which to operate. Without it, we will continue to swim upstream at times, trying to pick the best route without any framework in which to operate. Although the board is probably capable of doing that, without that framework we will continue to operate in isolation, and the context will not be available to the public or to the practitioners who interact with the board. The Worboys case, as you may have pointed out, is a classic example of misunderstanding fuelling very destructive media comment—much of it ill informed.

The Deputy Convener

Thank you very much.

That concludes today’s meeting. Our next meeting will be on Tuesday 5 June, when we will continue to take evidence on the Management of Offenders (Scotland) Bill. We will also have an informal visit to Glasgow next week, on 29 May.

Meeting closed at 11:53.  

The Deputy Convener

Agenda item 3 is our fifth and final evidence session on the Management of Offenders (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

For our first panel today, I welcome the Rt Hon Lord Turnbull and Ondine Tennant of the Scottish Sentencing Council. I thank the council for providing written evidence on part 1 of the bill, which is very useful. We will move straight to questions.

Daniel Johnson (Edinburgh Southern) (Lab)

Good morning. In terms of the options that are open to sentencers, the new provisions for electronic monitoring provide a great deal of scope. Can you begin with some general reflections on the possibilities for sentencers and any considerations about the implementation of the bill, if it is passed into statute?

The Deputy Convener

Who would like to start?

Rt Hon Lord Turnbull (Scottish Sentencing Council)

Good morning, convener, and Mr Johnson. Thank you for giving the Sentencing Council the opportunity to speak to you today. I will come to Mr Johnson’s question in a second, but I thought that it might be helpful to set the context for any contribution that the Sentencing Council can make by explaining a little about the council and its functions.

As you know, the Sentencing Council was formed in late 2015. It has three statutory objectives, which are to promote consistency in sentencing across Scotland, to assist in the development of sentencing policy and to promote greater awareness and understanding of sentencing. The council’s functions include the development of guidelines, conducting research and providing general information on sentencing.

At present, the council’s focus is on the development of sentencing guidelines. So far, general guidelines are under development. The first guideline, which has been consulted on and is about to be presented to the High Court for consideration, is on the principles and purposes of sentencing. Separately, there is a sentencing process guideline, which is shortly to be issued for judicial and then public consultation. We are also in the process of developing a sentencing young people guideline.

We have also begun work on two offence-specific guidelines—on death by driving offences and environmental and wildlife crimes—and research into the sentencing of sexual offences has begun. That will inform our decision on whether to develop a guideline in that area.

In addition to guidelines, several projects aimed at improving awareness and understanding of sentencing have been delivered, principally through the creation of the council’s website. The website provides comprehensive information about all the different kinds of sentencing, interactive case studies, explanatory videos, a myth buster and a jargon buster. Those are all open resources that can be accessed and used by agencies, practitioners, non-governmental organisations and any other interested party, for training purposes or public information.

We have not carried out extensive work on the implications of the present bill. However, we hope that we will be able to provide a little assistance, and perhaps I can assist Mr Johnson with his question. As we understand it, the bill is designed to make available to a sentencer who is considering a community payback order the opportunity to impose, as part of that order, electronic monitoring for a period of up to three years. That is an extension of what is currently available to sentencers, in relation to which the maximum is one year.

Community payback orders are, generally speaking, sentences that are designed to provide an appropriate level of punishment and to promote rehabilitation through support in the community. We noted that the policy memorandum that was published with the bill explained, among other things, that the opportunity to impose a greater degree of control over offenders in the community might make the use of electronic monitoring more appealing to sentencers.

The court principle—that is, that sentences must be fair and proportionate—incorporates the principle of parsimony, which is that sentences should be no more severe than is necessary to achieve the appropriate purpose of sentence in each given case. Therefore, the council hopes that a sentencing option that gives the sentencer more flexibility in applying that principle of parsimony will contribute to the individual sentencing purpose being achieved.

In the case of a community payback order, that purpose is likely to be rehabilitation, as well as the provision of a suitable level of public protection and punishment by restriction of liberty. In other cases, of course, the sentencing purposes of public protection or punishment might determine that only a custodial sentence can appropriately achieve the purpose. In such cases, the opportunity to impose a longer period of monitoring might not be sufficient.

It is obviously important that each case is assessed according to its own facts and that a fair and proportionate sentence is identified. However, in the council’s view, flexibility in the range of non-custodial sentences that are available is likely to be of benefit and likely to achieve the bill’s objective of making electronic monitoring more appealing to sentencers as an alternative to the imposition of custodial sentences.

We therefore expect that the opportunity to take advantage of a sentencing tool that has not been available until now will permit sentencers to conclude that some cases that might otherwise have been dealt with by the imposition of a custodial sentence can in future be dealt with by a new form of community payback order, which includes restriction of liberty for a period of up to three years. The individual circumstances that will determine whether a sentencer selects a sentence of that sort in any given case will of course vary from case to case, and all circumstances will be different.

Daniel Johnson

Thank you for that detailed answer. If there is one lesson to be drawn from the use of existing technology, it is that there is huge variability in how radio tags are used, with some sheriffs using them frequently and some sheriffs hardly using them at all. That is a consistent message that we have heard.

Consistent sentencing is one of your stated aims. What guidelines or training can be offered to ensure that we achieve consistency? Some people have expressed concern that, rather than increasing the use of non-custodial sentences, the new approach will be used to up-tariff people who would have been given a non-custodial sentence anyway, with such people being given a tag in addition to the sentence. How can your guidance and training prevent that from happening?

Lord Turnbull

The council is not aware of detailed research that demonstrates the sort of inconsistency in the use of the current arrangements to which you alluded. There might well be a level of inconsistency. It might well be that different opportunities are available in different sheriffdoms—again, that is not something of which the council is fully informed at the moment.

I expect that the introduction of a new opportunity would include judicial training on the availability of that sentencing tool, which should contribute to consistency. I am not sure that the opportunity to impose an additional or different sentencing tool will lead to the sentencing drift that you mentioned. The Sentencing Council observed in its written evidence to the committee that there was a possibility that an increase in the maximum period of monitoring might lead to a general increase in the periods for which electronic monitoring was imposed. That was in the light of research that showed that, when the maximum sentence for the carrying of knives was doubled from two years to four years, the average sentence length more than doubled.

That research may not necessarily have any implications for the change that is contemplated in the bill, because the bill does not propose to increase a maximum sentence for any offence; it proposes to add a sentencing tool that can be included in a package as part of a sentencing type—namely, a community payback order. We expect that judges will impose sentences that are just, fair and proportionate according to the individual circumstances that are before them, but we suggested in our written evidence that the Scottish Government might think it prudent to monitor the impact of the change, if it is implemented.

Daniel Johnson

My final question is about the fact that this is a technology-driven innovation; the possibilities for sentencing are potentially dictated by the technology and, indeed, enabled by it. The ability to create specific exclusion zones, for example, makes it different from the existing radio-based technology. To what extent will the training that you have alluded to need to go into the technical details of the changes that are enabled by the bill? Will the training be compulsory for sentencers?

Lord Turnbull

Judicial training is in the remit of the Judicial Institute for Scotland, not the Sentencing Council. The bill offers the opportunity for other forms of monitoring, such as transdermal alcohol monitoring, and the council’s only concern is the absence of research and evidence about the capabilities of such new forms of monitoring. We would be interested to examine the outcome of any trial programmes and any evidence as to the suitability or effectiveness of transdermal monitoring for types of groups or individuals. As with any new sentencing option, we consider it important to see a robust evidence base on the option’s capability and effectiveness. Having said that, the council is in favour in principle of the various types of monitoring that the bill encompasses.

Liam Kerr (North East Scotland) (Con)

I will move on to the process for imposing electronic monitoring. Lord Turnbull, you have talked about imposing sentences that are just, fair and proportionate. When making a decision on what sentence to impose, do you believe that those who decide to release a prisoner with electronic monitoring will be making judgments based on sufficient information?

Lord Turnbull

Did you say, “those who decide to release a prisoner”, Mr Kerr?

Liam Kerr

Those who decide to release a prisoner on electronic monitoring. When the decision is made to use electronic monitoring, what information do people have? In your view, do they have sufficient information?

10:15  

Lord Turnbull

In ensuring that public confidence is maintained in the administration of justice, it is important to make a distinction between issues that relate to the selection of the appropriate sentence and those that relate to the management of offenders who are serving a sentence. The issues that arise in relation to the former can fall within the remit of the Sentencing Council, but those that relate to the latter plainly do not.

The Sentencing Council is concerned with the selection of the appropriate sentence in any given case. Non-custodial sentences are, of course, imposed on a regular basis. We understand that the Scottish Government is considering the extension of the presumption against short sentences to a period of 12 months. It seems to the council that, if that were to happen, it would have a significant impact on the practice of sentencing. The range of options that were available to a sentencer would require to be appropriate for the circumstances, and it seems to the council that the extension of electronic monitoring would assist the sentencer in that process.

Speaking on behalf of the Sentencing Council, it is impossible for me to identify what circumstances in any given case would result in a sentencer selecting a community payback order as opposed to a custodial sentence, or for me to identify what form of community payback order would be appropriate. It is for the individual sentencer who deals with the facts of the case before him or her to make that decision, guided—we hope—by the principles and purposes guideline, which we are in the process of developing, and the process of sentencing guideline.

Liam Kerr

Of course that is the case, but do you have a view on whether, at this stage and going forward, the sentencer has sufficient information to guide them on whether it would be appropriate to use electronic monitoring?

Lord Turnbull

That is for the individual sentencer.

Liam Kerr

But I am asking whether that is the case on a general level. At present, does the sentencer have sufficient information available to them as part of that process?

Lord Turnbull

The sentencer can have sufficient information. The sentencer will have available to him or her information from the Crown on the circumstances of the offence and, to a degree, on the background of the offender. The sentencer will also have information from the offender’s representative, from the social work department, in the form of the criminal justice social work report, and from various other agencies. That package of information can provide adequate information to enable the sentencer to make a decision about release on electronic tagging. If it does not provide adequate information to enable the sentencer to make such a decision, they can request further information.

Liam Kerr

You mentioned the move away from short-term sentences that might be coming down the line. If there is an increase in the use of electronic monitoring, is there a danger that there will almost be a presumption that it will be used—for example, instead of custody or a short-term sentence?

Lord Turnbull

The council has not had the opportunity to conduct research into the way in which electronic monitoring is used at the moment, nor has it had the opportunity to conduct research into the change in sentencing practice that one might expect as a consequence of the bill, but I cannot see any reason to assume that there would be a presumption in favour of electronic monitoring simply because of its availability.

One would expect that the sentencers will assess the correct sentence according to the various pieces of information that are before them rather than just proceed with any given assumption on the appropriate sentence.

Liam Kerr

I will rest there for the time being.

John Finnie (Highlands and Islands) (Green)

Good morning, panel. Lord Turnbull, I would like to ask about compliance and enforcement. The Scottish Government has indicated that, in response to non-compliance, monitoring requirements should be appropriate to the circumstances, and it has referred to the development of a response framework to support consistency of approach. Does the council have any views on what such a framework should cover and who should be involved in agreeing it?

Lord Turnbull

The council does not have any sophisticated view on that at this stage. However, it would recognise that it would be reasonable to assume that an increase in the use of limitations might increase the level of breaches of such orders. Given that the offender would be required to consent to the order and that the sentencer would be required to explain the purpose and effects of it, one would assume that those steps would assist with compliance. However, I expect that such sentences would be introduced as part of a sentencing purpose that is aimed at rehabilitation, and rehabilitation tends to be an on-going process rather than something that has an immediate outcome. Of course, the courts are familiar with that. The sentencer would have to take into account the nature and extent of any breaches in deciding what steps to take by way of response and, in particular, in deciding whether the sentencing aim of rehabilitation is no longer attainable.

We understand that the Scottish Government is in the process of considering how breaches of such compliance orders should be managed and is preparing the sort of breach response framework that you mentioned. We have not had sight of that framework or its draft. We would be interested in seeing it in due course and in discussing the matter with the Government, if it is interested in the council’s views on it. However, at the moment, we do not really know the nature of the framework or the extent to which it might apply.

John Finnie

I am sure that the council’s views would be welcome.

You touched on the potential expansion of transdermal monitoring. Is it the council’s view that an appropriate response to compliance and enforcement would recognise that, with addictions, lapsing is part of a longer-term process and that the response to any lapse should be proportionate?

Lord Turnbull

That was very much the implication that lay behind my observation that rehabilitation is an on-going process. The courts are familiar with the need to accommodate relapse in trying to promote rehabilitation, and they are accustomed to dealing with that. The Sentencing Council has still to do research in that area, but it is interested in promoting rehabilitation where appropriate, and I am sure that it would easily recognise, as the courts do, the need for an on-going process in rehabilitation.

John Finnie

Thank you—that is very reassuring.

Michelle Ballantyne

I want to go back to Liam Kerr’s point about whether there is adequate knowledge for sentencing. Lord Turnbull, you talked about the reports that are received currently, such as social work reports. Will an additional risk assessment need to be added to what is currently available? Obviously, there is a significant differential between allowing somebody to stay in the community, even tagged, and placing someone on remand. Will there have to be a revamped risk assessment or another look at what kind of risk assessments are needed in that case?

Lord Turnbull

Risk assessment is not something that the Sentencing Council has come to look at in that context. As a sentencer, I know that risk assessment is something that regularly features in reports of the sort that you have outlined. There are many risk assessment tools that are used. Sentencers take account of risk assessment and the nature of the risk assessment tool that is used, and they are familiar with the need to make additional requests for risk assessment, if appropriate.

I think that the question that you raise is one that arises out of the particular policy change to increase periods of restricted liberty. That is something that might well require a focused risk assessment question, but it is not something that the Sentencing Council has had a chance to look at at this stage.

Liam McArthur (Orkney Islands) (LD)

It has been suggested by some witnesses that there are concerns about certain types of offence. In particular, it was suggested that, in the case of offences such as domestic violence and sexual violence, it might be difficult to square releasing someone, even with an electronic tag, with the need to provide assistance to victims. Does the Sentencing Council believe that there is a type of offence for which electronic monitoring would be never or rarely appropriate, or would that be wholly at the discretion of the sentencer as they weigh up the facts of the case?

Lord Turnbull

At this stage, the Sentencing Council does not have in mind the production of a guideline on the use of electronic monitoring, largely because it is approaching the question of sentencing guidelines from a slightly different perspective. We have started by trying to identify the importance of principles, and we intend to move on to offence-specific guidelines.

It might be that, in the context of a given offence-specific guideline, the council would recommend the imposition of a non-custodial sentence, in certain circumstances. It might be that the council would even recommend a particular type of non-custodial sentence. However, at this stage, we have not developed an offence-specific guideline. In particular, we have not developed an offence-specific guideline in relation to sexual offending. Therefore, we are simply not in a position to say whether we would ever be able to recommend a non-custodial sentence for any particular type of sexual offending, or whether electronic monitoring would be appropriate as part of that non-custodial sentence.

What I can say is that we have commenced the process of conducting research into sexual offending and sentencing practice. As part of that process, we are holding a stakeholder event on Friday 22 June, at which we will seek to gather the views of various interested bodies and expert groups on sexual offending and sentencing in relation to sexual offending. Those exercises will inform our decision about whether it is appropriate for us to develop a guideline on sexual offending, which could perhaps be done in our next business plan.

Liam McArthur

From that, I sense that there is an acceptance that, within those broad spheres of different types of offences, there are common characteristics that allow you to establish guidance in relation to each of them, and that that is not an unusual practice for the Sentencing Council. Is that correct?

Lord Turnbull

I am not sure that I am in a position to say anything about that at this stage.

Liam McArthur

What I am driving at is that it seems that the Sentencing Council’s experience of providing guidance would lead you to assume that it is not inconceivable that, for particular types of offences, there are characteristics that are sufficiently similar that you could provide guidance in relation to whether and in what circumstances electronic monitoring might be appropriate.

10:30  

Lord Turnbull

We do not have that experience at this stage, because we have not developed an offence-specific guideline. We have developed guidelines only in relation to principles and purposes, and we are in the process of developing a sentencing guideline in relation to sentencing young offenders. We have not got to the stage of considering whether there are characteristics that determine or point towards any particular outcome in any given offending situation, or whether such characteristics can be read across different forms of offending. We have not got to that state of research.

Liam Kerr

Michelle Ballantyne asked about the risk assessment and the factors that a sentencer will take into account. Can you enlighten me as to whether there is a hierarchy of considerations? I think that the public would hope that public protection might rank in the mind as greater than rehabilitation prospects, but does it in practice?

Lord Turnbull

That is where we would see the value of our principles and purposes guideline, which sets out to identify the core principles of sentencing as a matter of theory and practice, and attempts to set out the purposes of sentencing. Of course, they include public protection, punishment, the rehabilitation of the offender, the opportunity to give the offender a chance to make amends, and expressing disapproval of offending behaviour. We hope and expect that those principles and purposes, taken along with the process of sentencing guideline, would be of assistance to sentencers and of benefit not only to the public at large but to those people who become involved in the criminal justice process, by providing clarity as to what is taking place in the sentencing process.

We hope that the individual sentencer will benefit from the structure that we have identified in the principles and purposes guideline and in the process guideline, but we do not set out a particular hierarchy that applies in every set of circumstances.

Liam Kerr

Until that is brought in, is there a hierarchy of public protection over rehabilitation in the sentencer’s mind at the moment, or is there not?

Lord Turnbull

That would depend on the individual sentencer and the individual circumstances.

Liam Kerr

Thank you.

The Deputy Convener

That brings us to the end of this session. I thank the witnesses for attending and for their useful contributions.

10:33 Meeting suspended.  

10:36 On resuming—  

The Deputy Convener

We welcome our second panel: Michael Matheson, the Cabinet Secretary for Justice, and his officials. As we move between parts 1 to 3 of the bill for questions, the officials at the table will change. I thank the Scottish Government for its written evidence. We will move straight to questions. George Adam has a constituency-related question for the cabinet secretary.

George Adam (Paisley) (SNP)

Good morning, cabinet secretary. You will be aware of the case of Craig McLelland, from Foxbar in Paisley, who was brutally murdered last year. In that regard, it has come to light that James Wright breached a home detention curfew 11 days after being released from prison. The death of anyone at a young age is tragic enough, without the circumstances in this case. It is a massive thing for Craig McLelland’s family to have to deal with. In fact, it is so much so, that Craig’s partner, Stacey, wrote something that the judge read out during the sentencing:

“I have to watch our three sons in pain, sobbing, crying, asking questions that I cannot answer.”

Cabinet secretary, is there anything that you can say to try to provide some kind of comfort for that family in Paisley? Can you provide any answers or assurances over whether the Scottish Prison Service and Police Scotland followed appropriate procedure in this matter?

The Cabinet Secretary for Justice (Michael Matheson)

I am grateful to George Adam for raising the matter. It is clearly an appalling case that raises a number of questions that I can understand the family will want to have answers to, as l do.

There are two aspects in particular to this case. The first relates to, from what I can see at this stage, the assessment process when determining the decision to allow the individual concerned to receive a home detention curfew. The second aspect is the period of time after there had been a breach of that detention curfew for the investigation and the individual’s apprehension. It is important to ensure that answers are provided on both those aspects of how the case was handled. First, there is the Scottish Prison Service’s assessment when making that determination in the first place; and, secondly, there is the police handling of the matter.

In order to look at the issue thoroughly, I have asked Her Majesty’s prisons inspectorate for Scotland and Her Majesty’s inspectorate of constabulary in Scotland to look at the case in order to determine, first, whether there are aspects that can be improved in how assessments are made when determining whether someone should be provided with a home detention curfew; and, secondly, whether there are ways in which the police process for investigating such breaches and apprehending individuals who have breached an HDC can be improved so that they are brought to account and apprehended. They will report directly to me and, once we have those reports, we will be able to determine whether any further actions need to be taken.

Liam Kerr

Good morning, cabinet secretary. I will follow up on George Adam’s question. The case that he mentioned is appalling, so people will be pleased to hear how thoroughly you will look into its circumstances.

On electronic monitoring, people will be concerned to see that we are considering a bill that could increase the prevalence of convicted criminals in the community. Can you reassure the public that, in implementing the legislation, we will not be in that situation? Did you, when drafting the bill, consider that there would be more criminals in the community? How will we ensure that dreadful circumstances such as George Adam referred do not happen again?

Michael Matheson

Home detention curfew is provided for in legislation that has been in place since 2006. The provisions in the bill will allow us to use an extended form of electronic monitoring that we do not have at the moment. For example, for someone who is on a home detention curfew, we will be able to use global positioning systems monitoring instead of the system that we use at present.

The bill will extend electronic monitoring for three kinds of order. The first is community payback orders: the court will have the power to monitor electronically a person who is on a community payback order. Secondly, the bill will extend electronic monitoring to people who are on sexual offences prevention orders, which we cannot electronically monitor at the moment. Thirdly, it will extend the provision to allow us to monitor electronically people who are on sexual harm prevention orders, whom we cannot electronically monitor at the moment.

The purpose behind the bill is the creation of a clearer framework on use of electronic monitoring. That will ensure that we have a much clearer structure for monitoring people who are on orders that place them within the community, and for use of electronic monitoring as part of that. It is important that the bill will allow us to extend monitoring to individuals on such orders who, at present, cannot be electronically monitored. If the Parliament agrees to the legislative proposals, that will allow us to monitor them more effectively. Alongside that, the bill will allow us to introduce GPS monitoring, to which the committee has given some consideration. It provides monitoring at a significantly greater level of detail than the existing radio-based system.

The bill will give us a clearer structure for the use of electronic monitoring, extend it to areas where it is not available at present, and ensure that we have appropriate measures to monitor individuals when they are in the community.

To go back to the point that I made to George Adam on the case that he mentioned, I want reassurance about how the Scottish Prison Service assessed the individual concerned, and about how Police Scotland investigated the breach once it was reported to the police. It is right that the family have their questions answered. I hope that the assurance review that will be carried out by HMPI and HMICS will give us those answers and the assurance that we are looking for about both aspects of the process that relate to the case.

John Finnie

It is welcome news that you are having the prisons inspectorate and inspectorate of constabulary examine the case. Will you assure the committee that the reports will be made public?

Michael Matheson

Of course. Both inspectorates will report to me, and I am more than happy for the reports to be made public.

The Deputy Convener

I will ask about the general purpose of reform for electronic monitoring. Will you clarify the extent to which the expansion of electronic monitoring should be focused on reducing the use of custody? Will it be successful in doing that?

10:45  

Michael Matheson

A key part of what we seek to achieve with part 1 of the bill is the creation of clearer framework for use of electronic monitoring. From the findings of the electronic monitoring working group, it is clear that electronic monitoring on its own is not an effective mechanism for helping someone to address their offending behaviour. It needs to be seen as part of a package of measures and used alongside those other measures to address people’s offending behaviour and promote desistance.

The bill will allow us to achieve that much more effectively by ensuring that electronic monitoring is seen as part of a package. We are extending the legislation to orders that people might receive that we do not currently have the scope to monitor electronically, so that people can see that there is a package of measures that are intended to address their offending behaviour, while monitoring them appropriately.

An example of where electronic monitoring could provide greater protection is through the use of GPS and exclusion zones that individuals are not allowed to enter. I believe that some committee members were able to visit G4S to look at the system and at how geofenced areas can be set down to trigger the system in order to protect victims and other vulnerable individuals as and when that is considered to be appropriate. It can be used as a method of addressing victims’ issues while sitting alongside the range of measures to address the offending behaviour of the individual, rather than just providing electronic monitoring on its own.

Our aim is to provide a much more comprehensive system, and that is the purpose of the bill.

The Deputy Convener

What training and guidance will the relevant professionals receive to help to ensure that the aims of the reform are carried out properly?

Michael Matheson

Do you mean when someone is on an order?

The Deputy Convener

Yes.

Michael Matheson

It is important to recognise the way in which the bill is framed. For example, if someone breaches their electronic monitoring, the breach is tied in to the order that allows that person to be in the community in the first place. If they are on a community payback order and are also subject to electronic monitoring, and they breach some part of the electronic monitoring requirement, they are breaching the underlying order. It would therefore be for the criminal justice social worker to determine the nature of the breach and what sanctions should be applied or what action should be taken. That could include referring the matter back to the court for it to make a determination. The underlying order is the anchor for any decision on a breach. Criminal justice social workers have an important role to play in determining what action should be taken should there be such a breach in a community-based order.

We are in the process of revising the guidance that is issued to criminal justice social work services. It is due to be shared with the Social Work Scotland justice working group that will consider the matter in August. Once we have finalised that, the new guidance will be issued to criminal justice social workers.

The electronic monitoring element is almost an addition to the underlying order. Criminal justice social workers are well used to dealing with people who are on CPOs or other community-based orders. There might be an additional element of electronic monitoring on top of that for some individuals, but when breaches are signalled up to the system and reported back to the criminal justice social worker, they will be dealt with in the same way that any breaches are dealt with. The guidance on compliance that we will issue will update criminal justice social workers on how to handle these matters.

Daniel Johnson

I will follow on from those points about what electronic monitoring makes possible, and the point that has just been made about training. When we were at G4S, we heard that use of the existing technology boils down to the individual sheriff and their familiarity with, and confidence in, the existing technology.

What concerns do you have about how consistently electronic monitoring will be used, and what steps do you think can be taken to ensure that there is full awareness of what is possible? For example, G4S has said that it holds open information sessions for sheriffs to attend, but they are very much a voluntary thing. I recognise that the independence of the judiciary is important, but what are your concerns in that regard, and what steps can be taken to ensure consistency?

Michael Matheson

I know that extensive work has been undertaken to try to improve the knowledge of our sentencers around the potential benefits that can be gained from electronic monitoring. The last time I was at G4S looking at use of GPS monitoring, I was told that something like 11 sheriffs had attended an open evening the night before to study the system and to understand how they could make greater use of electronic monitoring.

The Judicial Institute also has a role to play in educating our sentencers on the scope and nature of different sentencing options and the use of electronic monitoring. If the legislation is passed and we move into the space where we can use GPS monitoring, given the different way in which it can be used and the other measures that can be built into electronic monitoring using GPS, I would expect the Judicial Institute to consider providing training to sentencers to enable them to understand the issues.

There will also be an opportunity for the contract provider to think about how it can provide to sentencers a range of information on how the system operates, and provide various options to them. The main route by which we will seek to educate our sentencers about the options that are available through the use of electronic monitoring will involve working with the Judicial Institute and the electronic monitoring service provider.

Daniel Johnson raised the issue of consistency. The reality is that our courts and sentencers will make different decisions in different cases. It would be wrong for me to say that there should be a consistent approach across the country. What is important is that we need to have a consistent approach to making the information available to our sentencers so that there is a consistency of understanding of what is available. Ultimately, however, it will be for individual sentencers to make a decision with regard to when the use of electronic monitoring is right and when it is not appropriate. That is what we are focused on.

Daniel Johnson

Given the way in which you have couched the policy, it seems that, fundamentally, it should enable more people to receive non-custodial sentences. Would you say, therefore, that the ultimate test of whether the legislation is successful will be whether we see an increased proportion of non-custodial sentences? Conversely, would you say that it would be a failure of the legislation if we were to see the same proportion, but with the people who receive non-custodial sentences having an electronic tag?

Michael Matheson

I do not expect to see a dramatic rise in the use of electronic monitoring as a result of the bill. I expect there to be some increase, and we have set out in the policy memorandum our expectations of what that could be.

The use of GPS provides sentencers with greater assurance. If they are considering giving someone a CPO, they can decide that the person should also be electronically monitored. That allows the people who are managing that individual to think about how they tailor their CPO arrangements alongside the use of electronic monitoring. G4S may have shared with members how it is possible to use electronic monitoring to set a timetable for someone over the course of a day or a week so that it is possible to manage that individual and ensure that they are complying with their CPO. It might be that it is sensible to use it in that format; it might be that, if someone breaches a CPO and is returned to court, the court will seek to apply electronic monitoring to them in order to deliver greater assurance around the arrangement; or it might be that a sentencer is considering the possibility of a short prison sentence but decides that, with the additional assurance that is provided by electronic monitoring, a CPO is a more appropriate disposal.

Electronic monitoring can be used in a variety of ways. It can be used to provide greater assurance in cases in which people receive a CPO; it can be used to increase the monitoring of someone who might have breached a community-based order; or it can be used in combination with the CPO instead of giving someone a short-term prison sentence.

As I said, I do not expect to see a dramatic increase in use of electronic monitoring. There will be some level of increase, but it might be across a number of different fronts; rather than just involving individuals who would otherwise have gone to prison, it could involve individuals on community-based programmes, in relation to whom it would provide an additional assurance with regard to managing them in the community.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

As you have previously mentioned, the bill contains a provision relating to use of GPS technology. Scottish Women’s Aid raised concerns about that in its written submission. It cited an example from America that involved anxiety being caused to the victim because they could see the perpetrator moving around. The case specifically concerned a victim of domestic abuse. In what circumstances might you envisage GPS technology being used? Do you think that certain crimes might lend themselves to use of that technology more than to others?

Michael Matheson

That is potentially the case, but I do not think that we should go down the route of excluding the use of GPS technology because of that. There will be specific circumstances in each individual case, and it is important that sentencers have the flexibility to decide whether they think that the use of electronic monitoring is appropriate in individual cases.

Jenny Gilruth raised the issue of domestic abuse cases. One of the actions that we are taking forward concerns the establishment of a pilot around the electronic monitoring of individuals who have been convicted of offences that have involved domestic violence. We are working with Scottish Women’s Aid to shape that pilot. I recognise that there are individuals who might find it concerning to know where the convicted individual might be, but there is also the aspect of use of exclusion zones and so on, which can provide greater assurance to victims.

Before we rush into use of the technology in relation to individuals who have committed domestic abuse offences, I want to test how it could be used and how we can ensure that the scheme can operate in a way that meets the needs of those who have experienced domestic abuse, and which addresses the concerns that have been expressed by organisations including Scottish Women’s Aid.

We have already had some initial discussions with Scottish Women’s Aid around the matter. The process is still at an early stage, but I am more than happy to keep the committee informed of progress on the pilot. There are a couple of things that we need to consider, such as how use of the technology would differ in urban areas and rural areas: for example, are there benefits that could be greater in rural areas than they would be in urban areas? I want to test those aspects before we consider use of the technology in this area, in order to address some of the concerns that Jenny Gilruth has highlighted, and which Scottish Women’s Aid has expressed. Hopefully, through working with Scottish Women’s Aid on the matter, we can understand the issues more fully and develop a system that is reflective of the concerns and anxieties that we have heard.

Jenny Gilruth

On the point about rurality, does the Government have any concerns about the fact that poor GPS reception in rural areas might limit the effectiveness of GPS technology?

11:00  

Michael Matheson

In my experience, GPS signals in rural areas can be better than they are in urban areas. However, there can be a challenge around access to telephone connections. The technology uses two systems: it uses GPS to position the individual, and it sends the data that it collects through mobile phone technology to the monitoring centre. It is the loss of that mobile phone connection that can have a negative impact, rather than the GPS element. Do not ask me to go into the technical aspects of the system in any greater detail than that, but that is broadly how the technology operates—that is how it has been explained to me.

A new electronic monitoring service contract is due to come into play in April 2020, and a key part of that will involve the ability to deliver the service right across Scotland. As part of that process, the technology will have to be tested across the country, including in rural and remote areas such as our island communities, to ensure that we have an understanding of how it will be used in those areas and how confident we can be about the service that can be provided there. The contract has been framed in such a way that makes it clear that we expect the service to be provided across the country.

When the system loses connection, the data that is gathered by the tag is stored in the tag. As soon as the tag has a connection with the mobile phone network, the data is relayed directly to the service provider. My understanding is that the connection can go down to 2G—general packet radio service signal level—which is much weaker than 3G or 4G.

Part of the assurance work that will be carried out through the contract process will involve making sure that the system can operate across the country, including in the remote and rural areas, and that there are sufficient measures in place to ensure that the system is resilient and operates effectively everywhere that it needs to.

Jenny Gilruth

On the point about the storage of data, section 9 of the bill relates to the retention of information through monitoring. Do you foresee any concerns in terms of data protection, particularly with the advent of the general data protection regulation? With regard to how individuals’ information will be shared and stored, can you talk the committee through how you will maintain individuals’ rights to own their own data?

Michael Matheson

In effect, the service contractor who is providing the electronic monitoring is doing so on behalf of the Scottish Government. In electronic monitoring cases, Scottish ministers will be the data controller, which means that responsibility lies with the Scottish Government.

I am always conscious that the introduction of any new technology means that there is a need to ensure that the public in general have confidence with regard to the data protection measures that are associated with it. The intention in section 9 is to ensure that the data protection rights of individuals who are subject to monitoring will be respected and that appropriate regulations will be introduced to ensure that Scottish ministers have a system in place that complies with all the data protection regulations and legislation that we have to comply with, including the recent changes around GDPR.

The data will be collected and stored in accordance with data protection measures, and it will be discarded at the appropriate times. All of that will be set out in regulations, and the ultimate parties who are responsible for that are Scottish ministers, because we are the data controllers in relation to these matters, even though the contract is being delivered through a third party.

I hope that that gives you an assurance that we have no intention of skirting around these matters. It is important that we have appropriate measures in place to ensure that data is being used and handled appropriately.

Liam McArthur

I assure the minister that we have benefited from Stewart Stevenson’s seminar on what GPS can and cannot do.

The issue in remote and rural areas is as much to do with the logistical challenges of responding to a breach as anything else. However, presumably the expectation is that the extent of any exclusion area would be wider in a rural or island area, and that, for example, specific islands would be excluded, with access to the relevant ferries and planes being monitored. Is that correct?

Michael Matheson

I should say that I bow to Stewart Stevenson’s greater knowledge with regard to the technical aspects of the system.

Liam McArthur

We all do.

Michael Matheson

I have offered you as much as I can this morning.

I go back to the point that I made earlier. Any breach by someone who is being monitored electronically is a breach of the underlying order that they are on. For example, if someone in an island community breaches their CPO, criminal justice social workers in Orkney will be responsible for deciding what action should be taken and whether the case should be referred back to the sheriff court. If the person breaches their electronic monitoring, the same process should be utilised.

The use of things like exclusion zones could be much more challenging in our smaller and more remote areas, given the geographical space and size of those communities. Before the court can determine whether someone should be electronically monitored, a criminal justice social work report has to be done, so that the sheriff understands the implications of electronic monitoring. In some circumstances, the use of exclusion zones might not be practical, and that is something that can be flagged up in the report.

In the existing system of CPOs, criminal justice social work reports and electronic monitoring, the fact that the court has to take into account the criminal justice social worker’s report should help to address some of the problems that we might have with very small communities and whether exclusion zones could be used there effectively without being breached constantly. In circumstances where they could not, the court might determine that an exclusion zone is not an appropriate measure and it will make another determination.

Liam McArthur

Can I have some clarification in relation to the domestic abuse pilot that you talked about in response to Jenny Gilruth’s question? At one stage, you referred to a pilot for domestic violence cases, and you went on to talk about domestic abuse. I assume that the pilot would be on domestic abuse in its wider sense, especially as we have just passed legislation to incorporate coercive and controlling behaviour.

Michael Matheson

Absolutely. I am, however, conscious that how we manage that in rural areas and urban areas might be different, as might the way in which electronic monitoring could be used. We need to give careful consideration to how we test that out in different places and spaces to see whether any pilot that we undertake would work effectively.

The Deputy Convener

I want to ask about resources. Some evidence that we have received has questioned whether sufficient allowance has been made for the additional resources that will be needed to achieve this change. Some have suggested that the financial memorandum might be a bit cautious. When we were at the Wise Group and G4S last week, we heard that it costs £42,000 a year to incarcerate a person, and the financial memorandum estimates the cost of monitoring a person for a year to be just over £2,000.

Is there an opportunity to transfer resources from the prison system to community justice to offset the cost?

Michael Matheson

The figure of £42,000 for a year in prison is slightly on the high side—it is probably closer to £35,000 to £36,000 a year. However, that is still a significant amount of money compared to the costs associated with electronic monitoring and community-based programmes.

With a piece of legislation like this, it is challenging to predict the actions of sentencers and the use of electronic monitoring. We have tried to expect some level of increase. As you can see in the financial memorandum, we expect an increase of approximately 10 per cent across all types of monitoring. We have framed the financial memorandum based on those expectations.

Our view is that the financial memorandum is broadly in the right place. It is worth keeping in mind that criminal justice social work budgets are at record levels, at £100 million a year, alongside the additional £4 million that we provide for community-based sentencing.

Once there is greater use of electronic monitoring, I will be keen to keep a close eye on how it plays out in terms of placing increasing demands on criminal justice social work. We will monitor that closely, but I believe that the financial memorandum is an accurate reflection of how things are likely to develop, and that the funding is adequate.

The convener mentioned the transfer of resources from the prison side to the community-based side. We have had that discussion at committee on previous occasions for a couple of years now. One of the real challenges regarding shifting resource to the community-based side is that there is still demand on the prison side. At the moment, if we take resources away from the prison side and move them into the community, we will potentially leave a gap in funding for the prison service. If we did that, it would not be the first time that members of this committee would ask me about ensuring that we had proper prison-based services, including courses to deal with offenders’ behaviour.

It is not straightforward to move money from the prison side into the community. We cannot simply say that because more people are being electronically monitored we can move resource across. That can only be achieved if demand reduces on the prison side. In the past couple of years, we have moved some resource from the prison side into community-based sentencing where there has been financial capacity to do that. However, I am not in a position to say that if it costs, say, £40,000 a head each year to keep someone in prison and we reduce the prison population by 10 we can transfer all that resource into the community.

There will still be demand on the prison service side, no matter what. The prison service has to take whoever is referred to it by the courts. I recognise that there is a need to rebalance the resourcing, but in the present financial climate we would create unintended problems on the prison side if we were to cut its budget and push that money into the community-based setting.

The Deputy Convener

Thank you—that is helpful.

Michelle Ballantyne

You have talked a wee bit about the impact of the bill in terms of assessment and reducing risk. Can you tell us how the bill will strengthen the way in which decisions about putting people on electronic tagging are based on professional assessment? At the moment, there is the criminal justice social worker report, but will the people who make the assessment need to do more when thinking about electronic tagging as an option? What onus will that place on them? What provision does the bill make with regard to that sort of thought?

Michael Matheson

It goes back to the principle that electronic monitoring is added on top of the order that someone would receive from the court anyway—the underlying order. If the court is considering someone for a community payback order at the moment, criminal justice social work services will provide a report on that individual prior to the court making a determination on whether a CPO is appropriate. If the sentencer is thinking about the use of electronic monitoring, they would flag that up at that point. That would allow the criminal justice social workers to think about what impact electronic monitoring, alongside the CPO, would have on the individual’s domestic situation and family, and how receptive they would be to its use.

There is already a mechanism for the report to be produced, as an assessment would be carried out anyway for the underlying order. If the court asks the criminal justice social workers to give specific consideration to electronic monitoring, there may be an additional element of the report that looks at the impact that it may have on the family, but the mechanism is already there for assessing the domestic situation and individual circumstances. That is not unusual for criminal justice social workers; they do it for individuals who are being considered for electronic monitoring at the moment. It may be an additional element of the report, but the report would be completed anyway, in order for the court to make a determination on the underlying order.

Michelle Ballantyne

The way that you phrased that made it sound as though the extended use of electronic monitoring is about up-tariffing the sentencing from a CPO as we know it now, adding electronic tagging over and above what would currently be imposed on an offender.

Did you really mean that, or were you talking about people for whom a CPO would be considered but found not to be appropriate because of risk, and for whom therefore a custodial sentence would perhaps be veered towards? I am slightly confused about the implication. Is another thing simply being added to the existing pot without sentencing changing?

11:15  

Michael Matheson

Earlier on, I made three points. First, electronic monitoring could be used for someone who would currently receive a CPO that the sheriff feels that he requires further assurance on. Therefore, it would potentially be used as an up-tariff for those individuals.

Secondly, electronic monitoring could be used for individuals who are in breach of a community-based order. If the matter is returned to the court, rather than deciding to issue a custodial sentence, the sentencer may decide to continue with the community-based order and add in electronic monitoring to give further assurance on that.

Thirdly, electronic monitoring could be used for individuals who are being considered for a short-term prison sentence. The combination of a community-based order and electronic monitoring alongside an appropriate community-based programme that is thought to be robust enough for the individual might provide the required assurance. That option could be chosen rather than a short-term prison sentence.

Therefore, there are various ways in which sentencers could use electronic monitoring. They could use it as a straight up-tariff element, which you mentioned, or it could be for a breach in respect of which the individual may otherwise get a custodial sentence. Closer monitoring of the individual might be seen as another option that could give further assurance. Electronic monitoring could also be used for individuals who are being considered for custodial sentences. The combination of a community-based order and electronic monitoring might give the assurance that is needed on what would be an appropriate sentence for the individual.

Therefore, there are a number of different ways in which electronic monitoring could be used. It is not purely a matter of up-tariffing.

Michelle Ballantyne

On the work that CJSWs currently do in respect of monitoring, including monitoring breaches, in my experience they already have workload issues with seeing people who have breached, for example. If people who are currently on CPOs and are not tagged are suddenly tagged and that needs to be monitored as well, will that workload be significant for criminal justice social workers?

Michael Matheson

The electronic monitoring element will be carried out by the service provider. Obviously, the community justice social worker will deal with the person’s underlying order, and they might manage the order in such a way that they tie that into any electronic monitoring. For example, the person may have to be in a certain place at a certain time, and the CJSW can timetable their day in a more structured fashion. That possibility is not currently available to them with the use of GPS tagging. However, as I said, the monitoring will be carried out by the service provider. Obviously, the criminal justice social worker is responsible for managing and dealing with any breaches of the community-based sentence order. That will not change, but a breach could come about through a person’s breach of their timetabling or through their going into an exclusion zone, for example. That would then be flagged up to the criminal justice social worker.

The approach may increase some aspects of the work of some CJSWs; for others, it may not make much of a difference or mean a significant change. However, it provides CJSWs with another tool in the box for how they manage individuals in the community and ensure that individuals comply with any community-based order that they have been placed on. It allows them to look at using electronic monitoring to ensure that the person is complying at the appropriate times.

John Finnie

My question follows on from Michelle Ballantyne’s question and is about the response framework for compliance and enforcement. If I understood correctly, you said that the matter has been raised with Social Work Scotland. Can you outline what that response framework will cover, who has been involved in its preparation and when it will be available?

Michael Matheson

It is about compliance. The guidance that will be issued to criminal justice social workers has come about as a result of engagement with the Social Work Scotland justice working group. In August, we will refer the guidance to that group for consideration and it will feed back to us any further changes that are needed. Once that exercise has been completed, we will issue the guidance to local authorities for their criminal justice social workers.

John Finnie

Could it be shared with the committee?

Michael Matheson

We can certainly share it with you, although I am inclined to do so after Social Work Scotland has had an opportunity to feed back on it and we have completed that process.

John Finnie

Is there a suggestion that there are shortcomings with the existing arrangements? Are they sufficiently resourced? Another aspect is whether there is a deficiency because the police do not have a power of arrest with respect to some issues.

Michael Matheson

It is more a case of trying to update the issues that relate to compliance. It is important for the public to have confidence in how community-based programmes are operating, and a key part of that is assurance around compliance. I am keen to make sure that we provide criminal justice social work teams with the most up-to-date information possible to ensure that they are doing everything that they can to ensure effective compliance.

It is worth adding that compliance figures for community-based programmes have gone up in recent years. I want to make sure that we are doing everything that we can to improve compliance further, and the intention behind the new guidance is principally to make sure that the approach across the country is effective and more consistent. There are still inconsistencies in how different local authority criminal justice teams deal with matters, and the work of Community Justice Scotland and the work on the compliance guidance are important elements in getting a more consistent approach to dealing with non-compliance.

John Finnie

In relation to transdermal monitoring of alcohol and drugs, will the framework give due regard to the nature of addiction, in which there are built-in lapses?

Michael Matheson

Although the electronic monitoring working group recommended that we should make provision for the use of transdermal monitoring, we intend to test it out before we look at rolling it out on a wider scale. There are people who think that it will be effective only if it is used on a voluntary basis. However, even on that basis, it will require a legislative framework, and the bill allows for that.

Transdermal monitoring is an element that could help to promote and support desistance among those who are trying address their alcohol consumption. It is another tool in the box that could be appropriate for some individuals. However, before we use it on a wider scale, I am keen for it to be tested out to see how it fits in as part of a desistance programme, rather than its being something that we add on to monitor people’s alcohol consumption just for the sake of it. It needs to be part of a programme that is about changing people’s alcohol consumption and improving how they manage that, and the bill will provide a framework that will allow us to do that.

John Finnie

That may happen in future, but is there a recognition in the existing and proposed arrangements that addiction issues can be challenging and that there are lapses? I hope that an individual will not be harshly treated over a lapse.

Michael Matheson

It is about giving a proportionate response when individuals lapse and allowing the criminal justice social workers to make a determination as to whether more robust action is needed and, if so, what that action should be.

We have to recognise that, for anyone who has an addiction and is trying to rehabilitate themselves, the risk of relapse is high. Relapse does not mean that the individual should not continue to try to address their addiction problem, but they must be assessed to see whether they are prepared to continue to do so. Transdermal monitoring is an electronic means of supporting programmes in that regard, but it cannot be done on its own. It needs to be part of a programme that promotes desistance and helps people to change their addictive behaviour.

Liam McArthur

Will the further work that is being done shed light on an issue that puzzled the Delegated Powers and Law Reform Committee? That committee noted the reference in the bill to

“an offender’s consumption, taking or ingesting of alcohol, drugs or other substances”,

and questioned what “other substances” might mean.

Michael Matheson

It covers things such as new psychoactive substances, which it might be appropriate to pick up on. Even if the purpose of the monitoring was to address a person’s alcohol consumption, if it picked up that a person had taken other substances, from a legal perspective we would be covered. The provision ensures that we have legal coverage in picking up such information.

The Deputy Convener

Why does the bill not provide for electronic monitoring as a condition of bail?

Michael Matheson

Committee members might be aware that an electronic monitoring scheme for bail ran for two and a half years, between 2005 and December 2007. The purpose of that scheme was to try to reduce the number of people who were being remanded in custody by monitoring people on bail, while providing greater public protection.

There was a report into that approach, which was found not to have achieved its aims. The service proved to be high in cost and quite burdensome, and it was not effective in addressing the issues that it was intended to address. The enabling powers in that regard were therefore repealed, so there is currently no legal provision for electronic monitoring as a condition of bail.

The evaluation also found that electronic monitoring of people pending trial helped people to maintain contact with their families, which might have been lost if they had been remanded in custody.

The bill will give us a mechanism whereby we can pilot different approaches. If, once they have been tested, they prove effective, we can revisit the question of further legislative provision to allow electronic monitoring to be used for bail.

It is extremely important that we test the approach properly, to see whether we can get a system that works effectively, rather than just deciding to roll it out. The provisions in the bill give us the power to run pilots and test the approach more effectively than has been done previously. Once we have done that, we can determine whether further legislative provision is required to allow us to use the approach more routinely.

Liam McArthur

Over recent weeks, the evidence that we have taken has shown pretty much universal support for the inclusion of the option of electronic monitoring as a condition of bail. I hear what you are saying about laying the groundwork for the approach to be introduced in due course. I presume that you have heard the same views in support of the approach but have come to the decision that it is not appropriate to provide for it now.

Given that the bill’s title includes the words “Management of Offenders”, you have, in effect, ruled out the possibility of including such provision in the bill, because people on bail do not fall within those terms.

11:30  

Michael Matheson

I hear what people are saying about the potential of electronic monitoring as an alternative to remand, to support someone who is on bail. However, the experience over two and a half years was that the approach did not work well and was not effective.

My view is that, if we are to look at the use of electronic monitoring as an alternative to remand—that someone could be bailed and electronically monitored—we need to test that out over an extended period of time, to ensure that it operates effectively. That period could be two or three years. After completing that evaluation, it would be a case of looking at whether we wanted to roll it out nationally and, if so, what that would look like and how we would resource it.

Even with the bill, the potential use of electronic monitoring in bail cases is still some considerable distance away. It is not something that will happen quickly. The advantage of GPS is that it gives us much greater control of the information we get on someone, compared with where we were in 2005, but even with a pilot, we will still be several years away from the greater use of electronic monitoring in bail cases, because of the need to have a pilot that runs for a couple of years, to test it out effectively and ensure that it is working properly.

The need for public assurance is a big part of the reason why it is important to run the pilot for a relatively extended period of time. I do not want the greater use of electronic monitoring in bail cases to compromise public safety. The system needs to be effective, and that will take some time to determine. That is why I have made the decision that, under the bill as it stands, we will take the power to run pilots. Once we have completed that work, it is right that Parliament should then consider the matter, and if we then wanted to roll it out we should bring something to Parliament to allow that to happen.

Liam McArthur

Are you satisfied that, in a bill that is about the management of offenders, taking that power is legitimate in relation to those who would otherwise be remanded?

Michael Matheson

For the purposes of running the pilots to test out the approach, I think that it is appropriate that we have the power to do that. At present we do not have that legal power, because the previous legislation was repealed.

Liam McArthur

Is that competent within a bill that is about the management of offenders?

Michael Matheson

Yes. Is your point about the pre-conviction use of electronic monitoring?

Liam McArthur

Yes.

Michael Matheson

There are provisions in the bill in relation to pre-conviction use of monitoring. Different disposals can be issued at different times while someone’s case is being considered. Bail is an interim disposal that the court issues at a particular point, and our view is that that is perfectly within the scope of the bill as it stands.

Liam McArthur

Pre conviction, you cannot be an offender, presumably.

Michael Matheson

The bill is so titled because of the range of areas that it covers. It covers three different areas: electronic monitoring, reform of the Rehabilitation of Offenders Act 1974, and the Parole Board reforms. All those areas relate to offenders, but the bill does not specify that monitoring will be used post conviction. The bill allows us to use it for bail purposes as well, if that is appropriate.

Liam McArthur

Could you share with the committee the findings of the 2005 report on the previous scheme?

Michael Matheson

Absolutely. I am conscious of some of the concerns that have been raised about whether monitoring can be applied to bail cases, because they are pre conviction. We will introduce an amendment at stage 2 to put that beyond doubt, but we are clear about the scope of the bill including the ability to have the pilots, and the term “offenders” is used because the bill covers three different areas that relate to different parts of the process of dealing with offenders.

The Deputy Convener

That concludes our questions on part 1 of the bill.

11:34 Meeting suspended.  

11:34 On resuming—  

The Deputy Convener

We move to part 2 of the bill, which is on the disclosure of convictions.

Liam Kerr

The bill will reduce the time before most convictions are spent. How did you set the disclosure periods? What data did you use to determine the appropriate level to set disclosure?

Michael Matheson

The principal purpose of this part of the bill is to reform the Rehabilitation of Offenders Act 1974 and reduce the disclosure timescales. That was informed by a report back in 2002, which considered timescales in the 1974 act and whether the existing arrangements and timeframes for the disclosure of convictions were adequate. The report made a range of recommendations for changes.

The changes have already been introduced by the United Kingdom Government. The approach that we have taken is broadly similar, although we have sought to be more transparent in the calculations that have been made in those areas in which we are consistent with the rest of the UK—broadly within one or two years. There are a couple of areas in which we propose reducing the timescale to a greater degree than in the rest of the UK, based on our principles in respect of short-term sentences and how they should be taken into account.

The underlying principle goes back to the study that was done in 2002, which informed the approach taken by the UK Government. We have used the same basis, but we have tried to give greater transparency in some areas and we have sought to further shorten the timescales in respect of short-term sentences in order to make them more consistent with the idea that individuals should be able to move on and into employment or other areas of work after their conviction is spent, where that is appropriate.

Liam Kerr

The committee has heard about the predictive value of previous convictions. There is some correlation between the length of time since previous offending behaviour and the likelihood of reoffending. What part did that play in setting the disclosure periods?

Michael Matheson

We have sought to take an approach that is based on the sentence that a person receives, rather than the offence that they committed. I understand Mr Kerr’s point. We have taken a sentence-based approach because, when a court considers the sentence, it considers all the factors that relate to that offence: the nature of the offence and the impact on the victims and the local community. For example, if someone is done for breach of the peace, that could cover a range of things, which would not be apparent on the face of it, but which the court at the time of sentencing would have known about and which would be reflected in the sentence that the court imposed.

We think that taking a sentence-based approach is better in reflecting on the disclosure timeframe than an offence-based approach, because that might not reflect the full extent or true circumstances of the case. It could put employers in a difficult position if they are trying to determine the nature of what went on in relation to an offence, rather than considering the sentence that was imposed.

We have tied our timeframe to the sentence because the court has considered all the matters relating to the case and has imposed a sentence. In our view, that is a much more transparent process and the timescale is linked to the court making a determination on all the facts, rather than our trying to second-guess what the court was considering.

Liam Kerr

Last week the committee visited the Wise Group and we heard from some ex-offenders, one of whom seemed concerned because he had a significant history of offending from a considerable time ago. His view was that he was completely reformed, he had moved on with his life and was not going to offend again but that his past would not let him move on. Part of that was about the disclosure periods. He said that they needed much more fundamental review. Do you have any thoughts on that? How do you respond to the point that he put to the committee?

Michael Matheson

He might be referring to the drag effect that disclosure periods can have. Part of the reason behind the bill is to recognise that society has moved on. The original purpose for which the disclosure periods were set has changed, as have the purpose behind the legislation and how we operate.

Liam Kerr

Forgive me, cabinet secretary. That is an interesting point, which I would like you to develop. What was the original purpose? I do not think that the committee has heard that.

Michael Matheson

In the Rehabilitation of Offenders Act 1974, the idea was that disclosure had to continue and only after the point at which the act decided that a person no longer had to disclose the conviction were they viewed as having been rehabilitated. That is a very old-fashioned way of considering rehabilitation and I am sure that you know from your experience that it does not necessarily fit with our approach today.

The original idea was that rehabilitation continued for that period of time. That is now often referred to as the drag effect that disclosure creates. It is more effective for someone to have a period in which they have to disclose the conviction but to move them into employment and move them on in life, which is a key part of their rehabilitation. The challenge is that, in some ways, the Rehabilitation of Offenders Act 1974 compromised that because of the extended disclosure periods that it created.

I do not know what impact the bill would have on the individual to whom you were speaking. However, part of the purpose behind changing the timeframes is to ensure that we get the balance right between the need to ensure public safety, the need for employers to get access to appropriate information to make a determination when they employ someone and supporting individuals to move on in life. There are three distinct areas that need to be considered in setting the timeframes. That is how we have gone about trying to strike the balance. As is clear from the consultation, the view is that the previous timeframes did not have the balance right.

The impact on the individual to whom you referred depends on his circumstances. It might be that, under the bill, he will no longer have to disclose his conviction, depending on the nature of his offence. In the system that we have created, the disclosure period is longer for people who receive longer sentences because of the serious nature of their offences. If the offence is such that the sentence is more than four years, there is continued disclosure for a much longer period and some individuals will always have to disclose the conviction.

In the disclosure periods that we have set out in the bill, we have tried to get the right balance between the three different areas: public safety, the need for employers to have the right information and supporting individuals to move on.

The Deputy Convener

I ask members to keep their questions as brief as possible, please. We still have quite a few questions to get through, including those on part 3.

Daniel Johnson

In combination with the legislative aspects of disclosure, is there a public information aspect? We keep hearing that the disclosure system is difficult to navigate for people who have experienced imprisonment or some other form of sentencing and for employers. Is there scope for public information to improve that for both parties?

Michael Matheson

There is. The launch of release Scotland is about working with employers to help them to understand the potential benefits and the risks of employing people who previously offended. That is an employer-based initiative, so we are working with employers to change their views on, and culture in relation to, the matter. That is alongside the work that we do with Scotland works for you, which is about trying to ensure that there is better understanding of, and information on, employing offenders.

11:45  

A number of companies are very much at the forefront of some of that work; Timpson, Greggs and Virgin Trains have all been instrumental in seeking to lead the way in demonstrating the benefits of employing people who have previously committed offences. The legislation is one element of that. The other element that is important is understanding the need for culture change. The legislation will take us only so far. The work that we are doing through release Scotland and Scotland works for you is helping to facilitate that culture change.

It is not about the Government lecturing on those matters. A key part of driving that change, and the best way of properly addressing some of the misconceptions that people may have, is for one employer to hear from another employer. If companies such as Greggs, Timpson and so on can be successful—I suppose that the success of Virgin Trains is more questionable, depending on your experience with Virgin Trains—that demonstrates that people who have an offending history can go back into employment. The practical experience of those companies can reassure other companies about the opportunities. That is key. The legislation will take us only so far; culture change is absolutely critical to getting the step change that we are looking for.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

We need to balance the need for public safety with the right to move on, and culture change is important. I absolutely agree that legislation in itself will not create that culture change and neither will private and public sector initiatives on their own.

One issue that has been raised is around the language and terminology that we use. In the evidence that was provided for today’s session, an explanation was given as to why, in the title of the bill, the term “offender” is used; that point was raised with us in other evidence. Can the cabinet secretary, or possibly his officials, elaborate on the rationale behind the use of the word “offender”?

Michael Matheson

There are a couple of challenges, in that we are seeking to amend the Rehabilitation of Offenders Act 1974, which has elements in it that are reserved and elements that are devolved.

Some of the language that we have used is reflective of us seeking to amend and update bits of the legislation in the 1974 act. Where we have been able to update the language, we have done so. There are a couple of areas in part 1 in which I think that we could go slightly further to amend the language and address some of the issues. However, there are other parts of the bill in which it is more difficult for us to change some of the language because of tying it into the language that was used in the 1974 act, which is the original piece of legislation.

Witnesses have highlighted a couple of areas in which we could improve the bill further and officials have already identified a few areas in which we may be able to do that. I am keen to look into that, but the combination that we have at the moment is there because we are creating some new provisions but we need to relate the bill to aspects of the existing primary legislation—the 1974 act—and that makes it difficult for us to be able to change the language across the board in the way that we might want to in a completely new piece of legislation.

Ben Macpherson

Does that apply to the title of the bill as well?

Michael Matheson

That goes back to the point that I made to Liam Kerr. We are trying to cover three different areas in the legislation and we are trying to get a term that covers all those three areas. It is very difficult, because the short title is meant to be exactly that, a short title, and we think that “offender” is the most appropriate term. I understand the concerns that some of your witnesses have raised on the matter. However, we believe that the term fits the needs of the short title, given the three areas that the bill spans.

Ben Macpherson

Thank you—it is good to hear that, and it is reassuring that an evaluation of the language that could be changed within the current drafting is already going on. I look forward to considering that at stage 2.

Daniel Johnson

I understand the technical points and the restrictions. However, does the cabinet secretary recognise that some people might feel that the term “offender” is stigmatising? Can the cabinet secretary give an undertaking that the Scottish Government will seek to avoid that language in future legislation and measures?

Michael Matheson

We did that when we introduced the Community Justice (Scotland) Act 2016 and changed the language. We were criticised by some people for doing so, but that act was much more focused on trying to deal with people with convictions rather than referring to them as offenders and it moved much more to promoting desistance. If I recall correctly, the Criminal Justice (Scotland) Act 2016 enshrines some of that in our legislation.

We are conscious of the matter and we recognise that terminology and language, not only disclosure periods, can have a drag effect against individuals being able to move on in their lives. If someone who has committed an offence is willing and able and we provide them with the right assistance, it is in all our interests that they be able to move on to a life away from committing offences because that promotes community safety. Therefore, if there are practical measures that we can take that help to support and address that, the Government is keen to do that. Language can play its part in helping to support that.

Michelle Ballantyne

If we are going to shorten the disclosure periods, have you given any thought to what happens in the worldwide web environment? We can now search pretty much anyone and get a lovely summary of everything that has happened to them, particularly via old newspapers. If we are going to allow people to move on, how do we reconcile that with information still being publicly obtainable?

Michael Matheson

That is an issue of genuine concern. I understand it, but the reality is that I do not have an answer. There are mechanisms to address it, such as the process whereby someone can apply to Google to have information about them removed from the internet, but there will always be the possibility that somebody could google their past and the search could bring up information that they would prefer people not know about or which they do not feel is appropriate. However, an employer cannot use such information for the purpose of deciding whether to employ someone. It can be much more challenging to demonstrate, prove and enforce that but, legally speaking, they cannot and should not do that.

Other than the mechanisms that are in place for people to apply to Google to have information removed, I do not have an answer on how we resolve the issue. However, I am conscious that, over time, it will become a bigger issue because of the way in which and how readily things are reported. Even what goes on in a local sheriff court, which might only get into the immediate local papers, can now be on the web and on Twitter and can be shared much more quickly.

There is no simple answer to the question. There might be scope to consider with internet providers whether they could improve the way in which their removal system operates. However, they will always say that there is a legitimate amount of information that they should be able to have on the internet for people to access if they consider it to be appropriate.

Michelle Ballantyne

Thank you. It will be a real problem.

You said earlier that disclosure should be about not the crime committed but the sentence imposed. One thing that concerns me is potential violence against children. I am thinking about cases such as that of Madison Horn in Fife, who was killed by her mother’s boyfriend. He did not have large sentences from the past for such actions but he had a history of violence. How will that get picked up in the disclosure process? Somebody might not have had a large sentence but perhaps they should have to disclose their predisposition to a certain type of behaviour.

Michael Matheson

If someone has committed a serious offence, they will have a longer period for which they have to disclose that information, because it is reflective of the sentence.

Further, in relation to protected roles, information can be made available under the enhanced disclosure provision. In certain circumstances, even when someone’s conviction is spent, the information is still made available to an employer or a particular service, where that is considered to be necessary—that would, of course, include issues of child welfare. At the moment, consultation is taking place around the necessity for disclosure to take place in relation to protected roles. That enhanced disclosure element also enables the police to disclose information that they think is relevant to the role that the person is applying for and which the organisation that is being applied to should be made aware of, even if it does not necessarily relate to a conviction. There is some flexibility in the disclosure process and, even when the timescales have been passed for a basic disclosure, an enhanced disclosure will still require that information to be made available.

Michelle Ballantyne

In its current form, the bill does not seek changes to that enhanced level of disclosure.

Michael Matheson

It does not.

Michelle Ballantyne

Are you therefore suggesting that that might need further consideration, in terms of a review?

Michael Matheson

No, because this is separate legislation. The disclosure periods that are set out in the bill concern what would be classed as a basic disclosure for the purposes of employment. There are then protected roles, in relation to which an enhanced disclosure would be appropriate. Even with the changes that we are introducing, there is still information that would be made available for an enhanced disclosure, and that would apply even when the conviction has been spent. Further, information that the police have that they think is relevant in relation to the post that has been applied for can be made available, if that is thought to be appropriate.

Some changes were made earlier this year to Disclosure Scotland’s processes on the back of legal challenges around all information relating to spent convictions being made available. However, there is no need for Disclosure Scotland to make any changes as a result of the bill. It will have to change some of its systems for basic disclosure checks, but not for enhanced disclosure checks.

The Convener

That concludes our consideration of part 2.

11:57 Meeting suspended.  

11:57 On resuming—  

The Convener

Part 3 of the bill concerns the Parole Board for Scotland. Again, I ask for questions and answers to be as brief as possible, as we are against the clock now.

Daniel Johnson

I would like to ask about the change in membership requirements. There has been some concern about the removal of the requirement for the Parole Board to include a psychiatrist, although we understand from the Parole Board that that requirement has caused issues in finding enough psychiatrists who are available. Do you have any opinions about the psychiatric input into Parole Board decisions as a result of the change?

Michael Matheson

The original requirement for having a forensic psychiatrist and a member of the judiciary on the Parole Board goes back to the establishment of the board, when it was a much smaller organisation. Now, there are around 50 members of the board who have a range of expertise, including legal and medical expertise, and the chair of the Parole Board is responsible for ensuring that that range of expertise is represented. There is no longer a requirement to specify that we have a High Court judge and a forensic psychiatrist on the board, because of the range of expertise that is now available.

It is worth saying that the High Court judge who sat on the Parole Board was present only infrequently, largely because the presence of a High Court judge was no longer really required. The change simply updates the rules to reflect the fact that the responsibility for ensuring that the right expertise is represented on the board is a matter for the chair. The Parole Board has the option of bringing in external expertise as and when it is required, so a person with a particular type of expertise relating to forensic psychiatry, for instance, could be brought in if that was deemed to be necessary by the chair of the board when considering a case.

12:00  

Daniel Johnson

I have a question about the independence of the Parole Board. The board’s submission is interesting, because it is the first time that I have seen a call from a body asking to be regulated a little bit more rather than a little bit less. However, it also makes some points about its independence and whether those provisions could be strengthened, about the need for clarity on governance and about appointments. Do you think that there is scope to improve the bill to provide greater clarity on those points? Do you agree with the case that the Parole Board makes?

Michael Matheson

I understand some of the questions that have been raised by the Parole Board. My view is that the bill goes far enough in restating the independence of the Parole Board in its decision making. I know that the board draws comparisons with the situation of the Scottish Courts and Tribunals Service and with the Judiciary and Courts (Scotland) Act 2008. However, the board operates somewhat differently from those bodies, so putting something about that in the bill would have no value whatsoever. The board operates as an independent body, and I think that the bill goes sufficiently far in reinforcing that. I do not think that we could add anything to the bill that would enhance or materially change any of that.

On governance, are you referring to the Parole Board sitting under the Scottish Courts and Tribunals Service? What aspect of governance do you have in mind?

Daniel Johnson

At point 16 in its submission, the board says:

“With respect to administrative independence we believe the Bill should also set out arrangements for governance through a Management Board, including the role of the Chairman, Chief Executive and the Management Board”.

Michael Matheson

I understand the point that you are making.

The reason for dealing with the matter through regulations is to ensure that there is greater transparency and a clear line of accountability in how the arrangements are taken forward. The regulations will also formalise the management structure that supports the board. Having a separate management board would be, in effect, creating another public body, which I do not think is necessary for this purpose. The regulation-making functions that ensure that we have the right management structure to support the board provide the most appropriate way of approaching the issue.

Of course, the regulations will be drafted in consultation and partnership with the chair of the Parole Board to ensure that the administrative support that it is felt is needed is provided in the most appropriate way. The other benefit of using the regulation-making functions is that regulations can be adapted fairly quickly as and when necessary.

You also raise the issue of appointments. Part of the purpose of changing the appointments process relates to the independence of the Parole Board. The process will be taken forward by the chair, so it will no longer go through the public appointments process—which would come to ministers—or the Commissioner for Ethical Standards in Public Life in Scotland. The mechanism will go through the chair of the Parole Board, who will deal with the appointment of Parole Board members. That is about reinforcing the independence of the board’s decision making.

Daniel Johnson

The points that the Parole Board has made around independence are, in part, a matter of principle and, in part, a reflection of the situation with regard to the Worboys case. I think that the Parole Board believes that it is important not only that it is independent but that it is seen to be independent. In that regard, it is important that it does everything that it can to ensure that its operations are as transparent as possible.

Two interesting suggestions have been made on the back of that. One concerns whether some sort of public test could be arrived at and the other concerns the publishing of minutes, albeit in a redacted form, so that the public can have greater insight into the board’s decision making. The Parole Board was keen to point out that it might not be possible—or advisable—to provide for either option in the bill, in the fullest sense. However, it thought that provision might be made to require the board, first, to develop and publish tests and, secondly, potentially, to publish something on its decision making. How do you respond to those suggestions?

Michael Matheson

You raise a couple of issues. On greater transparency, there is currently provision for the chair of the Parole Board to provide information about a case in exceptional circumstances, where that is appropriate, although I understand that the board has not made much use of the provision.

The Worboys case raised issues that the Parole Board and the Scottish Government have been considering in the context of Parole Board rule 9, which provides that disclosure of information is not allowed. We are keen to ensure that the board operates in as open and transparent a manner as possible, notwithstanding some of the confidentiality issues that exist, and consideration is currently being given to addressing the issues that arose in the Worboys case to ascertain whether we can improve and enhance transparency in the decision-making process.

A significant amount of work is also being done in England and Wales as a result of the judgment. We have been in touch with the Ministry of Justice to explore its direction of travel in the work that it has been carrying out, so that we can properly understand how we might improve how we do things in Scotland. There is more work to be done in the area to ensure that the system operates in a more transparent manner, notwithstanding the issues to do with confidentiality, which are extremely important.

Sorry—I have forgotten the other points that you made. Have I addressed all the issues that you raised?

Daniel Johnson

I think so.

John Finnie

What is the justification for imposing a six-month time limit on prisoners making representations about recall from release on home detention curfew? The Parole Board sought to reassure us on the matter; does the Scottish Government have a position?

Michael Matheson

At the moment, there is no time limit. We decided to set a six-month limit, which we think is reasonable. In a recent case, a prisoner instructed a solicitor about revocation that had taken place eight years previously. Many of the individuals on the Parole Board who had dealt with the case had retired or moved on and were no longer available to consider the matter.

In appeals to the Upper Tribunal for Scotland about First-tier Tribunal decisions, the limit is 30 days. There is also provision for someone to appeal their case, and there is a three-month period in that regard. Our view is that six months is a reasonable period for someone to consider whether they want to appeal a revocation of their parole licence.

John Finnie

Do you acknowledge that information could come to light some time after the six months? Is there some flexibility or avenue of redress if that happens?

Michael Matheson

Ultimately the person could take the matter to court. The proposed six-month limit is the timeframe for an appeal to the Parole Board. If there was a decision to appeal outwith the Parole Board, the person would have to go through the normal court appeal process.

There is no timeframe at the moment, and eight years is, in my view, an extremely long period to wait before choosing to lodge an appeal. If someone thinks that their parole has been revoked inappropriately or incorrectly, they should be able to decide whether to appeal the decision within six months, to allow the Parole Board to consider the matter. Otherwise, the matter could run on for an extended period, and it would be unreasonable to expect the Parole Board to deal with that.

The Deputy Convener

That concludes this evidence session on the Management of Offenders (Scotland) Bill. I thank the cabinet secretary and his officials for a useful session.

The Convener

Item 2 is an evidence-taking session on the Management of Offenders (Scotland) Bill at stage 1. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper.

I welcome to the meeting Gill Imery, Her Majesty’s chief inspector of constabulary in Scotland; Wendy Sinclair-Gieben, Her Majesty’s chief inspector of prisons for Scotland; Chief Superintendent Garry McEwan, divisional commander, criminal justice services division, Police Scotland; and Colin McConnell, chief executive, Scottish Prison Service. I thank everyone for their written submissions. As always, the committee has found them particularly valuable in advance of the formal evidence session.

We are not doing too badly for time, so we can allow a bit of latitude. However, I must ask everyone to be as succinct as possible. I also suggest to members that the session might be more effective if they direct questions not to the whole panel but to the person whom they want to address it, if they know exactly who that is.

Liam McArthur will start the questioning.

Liam McArthur

Good morning. As the convener has said, your written submissions were very helpful, but it might also be helpful if, for the record, I start by asking who can be released under home detention curfew and how the balance between public protection and rehabilitation is struck.

Colin McConnell (Scottish Prison Service)

As you know, the chief inspector of prisons and the chief inspector of constabulary made a number of recommendations that were considered by the Scottish Government and out of which has developed a further set of restrictions on those in custody who can be considered for home detention curfew. I have the list right here, and I am happy to read it out.

There are statutory exclusions, which include those required to register as sex offenders, those on extended sentences, those who have a supervised release order, those serving a recall under sections 17 or 18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, those subject to hospital direction and, of course, those awaiting deportation. Over and above that, there is a presumption against the grant of HDC for those whose index offence involved an act of violence, possession or use of an offensive weapon and possession or use of an article with a blade or sharp point and those with any links to serious and organised crime.

Currently, there is a considerable restriction of and presumption against the grant of HDC, which, since the new measures were introduced, has resulted in almost a 75 per cent reduction in the granting of HDCs. At one time, we may well have been granting somewhere between 25 and 30 HDCs per week, whereas now we are down to around seven per week.

12:00  

Liam McArthur

You have described those people who are excluded. What was the previous presumption for HDC? Would someone get to a certain point in their prison term and then automatically apply or be put forward for HDC?

Colin McConnell

There are two facets to that. First, the statutory exclusions always applied. Previously, unless there were particular factors, the expectation was that HDC would be granted—that has been completely turned around and the presumption now is that HDC will not be granted where there are any concerns at all or where there have been previous acts of violence. Secondly, although the presumption against the grant of HDC is guided towards the index offence, decision makers are encouraged to look further into someone’s background. The implication of that is that, where there is any recent indication of violence or even where there was an act of violence that is considered to be serious but was some time in the past, it would probably militate against a decision to grant HDC.

Liam McArthur

That is a fairly dramatic fall. It is entirely understandable how we have arrived at that point but, given that the purpose of HDC is to rehabilitate those who are about to leave prison and help them back into the community, that dramatic reduction in the number of people getting HDCs is going to have a knock-on impact on the rehabilitation process. If that is the case, what measures can be taken to address that, given that it is not in anyone’s interests for offenders to be released back into the community only to enter into a cycle of reoffending?

Colin McConnell

That is a valid point. At the end of the day, it is the same group of people—the nature of the people we care for in Scottish prisons means that most of their backgrounds are fairly similar. We are seeing something that will be projected in the weeks, months and years ahead. However, we cannot have it all ways. If our concern is the potential for someone to commit a further offence or a heinous act when on any form of licence and if, understandably, our tolerance of that potential is reduced, our position will be to move forward on the current basis.

I have to be clear with the committee. My instruction to governors, through the operations director, is that we should be very careful in how we arrive at the decisions to grant HDC, given what has happened and the level of public and political concern about people being released into the community. We are seeing a clear change in behaviours that will be sustained over time.

Liam McArthur

I will come to the issue of the information that informs those decisions and the training for the people making them but, first, does anyone else want to address the point about rehabilitation and any concerns that might arise from the approach that is now being taken?

Gill Imery (Her Majesty’s Inspectorate of Constabulary in Scotland)

I am happy to add a comment on the involvement of other agencies in the assessment of an individual’s behaviour in the community. We saw that such assessment was missing. Other than the service provider having control of the device to manage the curfew, there was no assessment of the conditions for that individual.

The three guiding principles for the Prison Service that were previously in place for home detention curfew—protecting the public, preventing reoffending, and promoting successful reintegration into the community—were sound. The problem was not the principles themselves but, as the evidence that we found in our review showed, the fact that they were not being followed.

Liam McArthur

The statutory exclusions that Mr McConnell has just talked about take the decisions that need to be taken down to a much smaller level, as well as involving others. It would be helpful to know precisely who is expected to be involved in the decision-making process. What have the training that is provided for such individuals and the information and evidence that they are able to draw on in making such decisions been like until now, and how will they change as a result of the reports that have been produced?

Colin McConnell

The SPS welcomes the reports that have been published. As the committee knows, we have accepted without limitation the recommendations for improvement that have been made.

As I expect the committee knows by now, the prison governor takes the final decision. As before, it remains the case that the eventual decision involves a multiplicity of contributions from both within and outwith the prison environment. The engagement of external contributors is now focused on in greater measure, to ensure that the bases are covered appropriately. At the end of the day, the approach is about having defensible decision making.

The key advantage that we now have in the Scottish Prison Service is that fewer people are engaged in the decision-making process. Such people are clearly identified and their roles are very specific. Having governors or, in their absence, deputy governors taking such crucial decisions is a strengthening measure, given the recommendations that were made, because they are strategic decision makers and that is all part of their experience and training as they move through the service.

That introduces an opportunity for reflective practice in the Scottish Prison Service. Every month, governors in charge meet the director of operations. Part of that process is reflective practice, through which the decision-making process is continuously reviewed and improved so that we will have the consistency across the service that the chief inspector asked for.

Liam McArthur

But, from what you were saying, such a decision will still be one for a governor or deputy governor and we are not moving to a situation in which a board of individuals would take it.

Colin McConnell

No. Previously, such decisions would have been taken at middle manager level in the service. Now, they are taken by the governor in charge of each prison. Of course, some prisoners may wish to appeal against them, and there is an appeal process. If governors in charge are not available to make such decisions, their deputies do so.

Liam McArthur

You talked about a governor or deputy governor taking on board a multiplicity of views before arriving at such a decision. If anyone were to raise serious concerns about what the governor or deputy governor intended to do, would that be overridden or construed as a potential veto? Is the idea to arrive at some unanimity across the range of stakeholders?

Colin McConnell

To be clear, governors in charge are experienced strategic decision makers—that is the nature of their job—so we trust them to act appropriately within the framework that they have been given. Also, their instructions are clear. I reiterate to the committee that, given where we are now, the presumption is against the grant of HDC. Governors will identify those who will benefit more clearly from HDC, in the absence of clear or critical concerns. As I set out with the statistics that I shared with you, a reduction of towards 75 per cent suggests that, in the short term, those critical decisions are probably being taken more appropriately, given the limitations that are now in place and the fact that governor practice is regularly reviewed.

Liam McArthur

You talked about the other individuals or stakeholders who would be involved. Will additional types of information or evidence be sought as part of the decision-making process?

Colin McConnell

That was part of the overall recommendation. Police colleagues might wish to contribute on that. A considerable amount of work is going on, particularly with Police Scotland, on information sharing and making sure that the information runs through to the decisions that are taken. There is an exchange of information every Monday morning in relation to the data bank of those who are being considered for HDC and that information is subsequently validated. With the information that is coming together from criminal justice social work and Police Scotland and from across the Prison Service, there has been a quantum leap in the data that we hold on each individual who is being considered. Having a strategic decision maker sitting on top of that gives us a far better level of assurance than we previously had.

Chief Superintendent Garry McEwan (Police Scotland)

I support everything that has been said. The purpose of home detention curfews is the reintegration of the right people back into communities and the rehabilitation of those people. When a home detention curfew is breached, the role of the police is to understand what the breach is—whether the curfew has been breached or an offence has been committed—and to incarcerate the individual, who will then be recalled to prison. I fully support the premise of HDCs.

The risk assessment and the communication between both organisations are far better than they were previously. As Colin McConnell mentioned, there are weekly discussions via conference calls at an operational level, when regular discussions are had to ensure that details of those who are being released by the Prison Service on a home detention curfew—and those who have breached their curfew or any aspect of it—are communicated to Police Scotland. We can take action very quickly at a local level, with good oversight by local commanders and local area commanders, to make sure that individuals who are unlawfully at large are brought into custody as soon as possible.

Liam McArthur

My colleagues will come on to issues to do with breaches.

I have one final point. Mr McConnell described a dramatic reduction in the use of HDCs and Mr McEwan talked about having an appropriate level of risk management. That suggests that nobody was entirely comfortable with the previous situation. We have arrived at the current position in the most tragic of circumstances, but were concerns raised previously about the extent to which HDCs were being used across the board for individuals who should not have been granted them?

Colin McConnell

I am not sure that I follow the logic, Mr McArthur. I understand that you may be juxtaposing the current position on a monochrome basis with where we were previously, but the fact is that the approach has changed. As the chief inspector reported, in the particular instance that led to the review, the SPS had complied with the instructions in the guidance as it was at the time. The guidance now is of a different order. We have moved from a presumption in favour of granting HDC to a presumption against. It should not surprise us that, with the restrictions that we have put in place and with potentially more adept decision makers taking those critical decisions, there is a sea change in the level of grant of HDC.

12:15  

I do not agree with the monochrome position that what went before was unacceptable. What went before was compliant with the rules and regulations as they were. The rules and regulations that we have now and the import of a presumption against, rather than a presumption in favour, is what leads us to the conclusions—

Liam McArthur

I do not think that I was making a monochrome characterisation. I was simply picking up on the point that you made that there has been a dramatic reduction in HDCs now that the presumption has shifted and on the suggestion that the way in which the approach now manages risk is entirely appropriate. I do not doubt that that is the case. However, the public will question why, given that HDCs were being used to the extent that they were—albeit for rehabilitative purposes and all the rest of it—concerns were not being raised at that stage as to whether that was appropriate, whether the presumption was correct and whether the statutory exclusions were as extensive as they needed to be. Those are entirely legitimate questions for the committee and the wider public to be asking.

Colin McConnell

I agree entirely. I go back to part of Mr McArthur’s earlier question, which was what, at the end of the day, HDC is for. As a society, we believe that people who have made mistakes and fallen by the wayside should be tested out in the community. We should find opportunities to retest them and give them the opportunity to survive that and not make mistakes. Fundamentally, that is what lies behind HDC and licensing more generally.

There have been a couple of horrendous experiences involving people in the community who have been on HDC or on licence, which have caused us collectively to reflect and that has led us to the current position.

The Convener

Does Ms Sinclair-Gieben have anything to add?

Wendy Sinclair-Gieben (Her Majesty’s Inspectorate of Prisons for Scotland)

We were pleased that all the recommendations had been accepted. However, I was particularly pleased about the speed of acceptance. The guidance document is the bible for people who are deciding on HDC and they lean on it. The new guidance document that has already been issued holds all the extra stuff that has been put in—and which, funnily enough, we did not recommend—and goes into detail. All the recommendations that we made are now in the guidance and it is a much clearer, more robust document.

The guidance also ensures more consistent documentation. One of our concerns was consistency of judgment on the day, because it comes down to a judgment that is made by one person. We asked for a second reassurance by someone more senior and that now happens. The guidance is considerably larger and provides the appropriate documentation. Given all that, we should see a consistency of approach.

The exclusions are now much greater. Listening to the debate, I feel that it is the exclusions that are causing the drop in numbers, rather than the poverty of the previous capability.

The Convener

Do you have any thoughts about the impact of the more stringent restrictions on the prison population?

Wendy Sinclair-Gieben

I do. We were speaking about that before. Before the review started, I had concerns that there might be unintended consequences of a rise in the prison population—not just as a result of HDC. One of the recommendations that I made was that there should be an official, independent evaluation of the whole of HDC in which we collect the reconviction statistics and examine whether HDC actually works for reintegration.

My concern is that, if we become risk averse in respect of HDC, we will also become risk averse on parole and moves to the open estate. That will mean that the pressure on prisons—some of which are already struggling—will become huge. I was very worried about that ahead of the review. Colin McConnell and I keep in regular touch because I want to see how the prison population is growing.

As the committee will know, another unintended consequence is that the pressure on the prison population puts pressure on the staff and various other things. For example, the levels of self-harm and violence go up.

It is a very testing time at the moment, because we have distinct evidence that such change in the HDC system has had an impact. I was interested to hear Liam McArthur ask whether that implied that we were not getting it right previously. We need a further review in three or five years’ time, which should ask whether we have now got it right and whether it is having the consequences for HDC that we wanted. We need to do a proper evaluation.

The Convener

Liam Kerr has a supplementary question.

Liam Kerr

I will pick up on that point, but my question is on something that Colin McConnell spoke about in response to Liam McArthur’s questions: political and public tolerance of the risk of reoffending. What I hear from you is that, since the reviews, and since some tragic incidents have happened, such tolerance has reduced. That begs the question of who made the assessment that we could previously have a higher tolerance of risk to public health. Was it the SPS or was there an instruction about that from the Government?

Colin McConnell

That is an extraordinarily difficult question to answer. I listen to discussions in the Scottish Parliament, and I take into account discourse in the media. I also have one-to-one discussions with parliamentarians, as well as taking general counsel from other professionals across the justice system. It is not a straightforward either/or answer; it is a melange of all those factors.

As chief executive officer of the service, my role is to try to set the tone for what I think sensible decision making in an operational public service should be. At the moment, and given all the discourse that has been going on, my judgment is that there is a lower level of such tolerance, particularly in the public domain. I would be interested to hear from parliamentarians sitting around this table if they do not think that that is the case. I influence the decision makers in my organisation, and my judgment is that we need to be more cautious in our decision making—especially on allowing people access to the community when they have a prison sentence. The guidance and the restrictions that have been agreed and implemented reflect that.

Daniel Johnson

Mr McConnell, what number of crimes, especially serious, violent and sexual crimes, have been committed over the past two to three years—or whichever period for which you have numbers—by people on home detention curfew?

Colin McConnell

I do not have such data immediately to hand. I had thought that the committee might be interested in that, and I asked my team for the data this morning, so we are working up those details. I can say that, other than the cases that are already in the public domain and which have influenced the review, I am not aware of high numbers for serious offending. However, a low level of offending is reflected in the numbers of prisoners whose licences or HDCs have been breached. I do not have the precise numbers, but—I am looking at the convener as I say this—I am happy to write to the committee with them if that would be helpful.

The Convener

That would certainly be very helpful.

Daniel Johnson

The numbers that have been intimated to me are 16 murders and dozens of serious sexual assaults. Do those numbers surprise you?

Colin McConnell

In Scotland?

Daniel Johnson

That is what has been intimated to me.

Colin McConnell

I am entirely unfamiliar with those numbers.

Daniel Johnson

Okay. I will await your clarification. As your previous answer suggested, the key points here are whether the tragic circumstances that brought about the reviews are isolated, and the extent to which there might be a wider problem. Do you agree?

Colin McConnell

With the convener’s indulgence, Mr Johnson, may I check that? Are you saying that your information leads you to believe that 16 murders have been committed by people who were on HDC?

Daniel Johnson

That is the number that was raised directly with me by the family of Craig McClelland, who lost his life as a result of such a case.

Colin McConnell

Of course, I will check that number; I am shocked and stunned by it. I am not familiar—

Daniel Johnson

Obviously, you have asked for those numbers. They are important with regard to the point that I have just raised.

Colin McConnell

I am looking at police colleagues.

Chief Superintendent McEwan

I would be very surprised if, since 2006, 16 murders had been committed by people who were out on home detention curfew. I would be extremely surprised if that was accurate, and it will be interesting to get the figures.

Daniel Johnson

Are you confident about the processes that are in place? You said that it is now the governor who takes the final decision. Why was the governor not taking those decisions previously? Who was taking them? Can you clarify the level of seniority or the number of years of experience of the individual who was taking those decisions? Were they finally signed off by the governor? Given the new guidelines, what will prevent that becoming just a rubber-stamp process?

Colin McConnell

As I said previously, one identified middle manager in the prison took those decisions. Now it has to be the governor in charge who signs those decisions off.

Reflecting on the data that Daniel Johnson has just shared with me, I am a bit stunned by that.

Daniel Johnson

It was referred to me directly, personally and anecdotally. My primary concern is that the McClelland family has a lot of questions and that they are still very angry. I want to ask the questions that they would ask if they were here, because I think that that is important.

Colin McConnell

With regard to the previous decision-making process, the information that has already been shared with Parliament is that 80 per cent of people on HDC completed their licence without issue. There was a level beyond that where there were technical breaches, but there was a comparatively small number—I will get that data for the committee—who went on to commit further offences. However, those offences were generally low level. I am not excusing that or diminishing it—it is just a fact. We know, because it is also a fact, that in recent times, there has been one very serious issue with HDC, which we should all reflect on carefully. We hope that the measures that we have put in place are designed to make the chance of that issue happening again as unlikely as possible.

Mr Johnson and Mr McArthur raised similar questions. We have now put in place different decision-making processes because of what happened, but, given the instructions that we previously had in place, it is not right or appropriate to try and criticise those previous decision makers. As the chief inspector has said—

Daniel Johnson

Mr McConnell, with all due respect, I will quote directly from the HMIPS report:

“Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of ‘robust’”—

I am skipping a sentence—

“This situation led to different criteria, interpretation or timescales being adopted in different establishments.”

Those are pretty critical comments to put in a report. Although I agree that adopting new criteria and assessment processes does not necessarily infer anything about the previous processes, those sentences in that report do, and they question the robustness of the processes.

As Gill Imery pointed out, if one of the fundamental criteria is keeping the public safe, then questioning the robustness of the processes is of serious concern. How do you respond to that?

12:30  

Colin McConnell

I am grateful for that clarification, because the chief inspector said that, in the specific case that was being referred to, the decision makers had followed the process. That is quite insightful. The chief inspector might wish to comment on this, but, in general, the rules that were in place were being followed, by and large.

We welcome the report, the recommendation and the move from a situation where the presumption was to grant HDC to one where the presumption is not to grant HDC, because, by necessity, that demands a far tighter set of requirements. We have put those in place and that is what the chief inspector is saying.

Daniel Johnson

Finally, the situation regarding home detention curfew is in many ways comparable to the decision on remand and whether to grant bail that is taken at the beginning of the criminal justice process. Are the decision by a sheriff or judge whether to bail a person and any concerns that they might have had about public safety taken into consideration in the decision process for HDC now, or have they been in the past? If not, would that information be valuable as part of your considerations?

Colin McConnell

That is an interesting proposition. We do not take that into account because the person that we have before us—the person for whom we are making decisions—is someone who has been convicted and sentenced to a period of custody. That aspect of the judicial process has already been followed through and we then apply an administrative or executive process. I understand the point that you are making, Mr Johnson. I would be happy to reflect on that with my justice policy colleagues.

John Finnie

I have a question for Mr McConnell—I am afraid that you are getting all the questions.

Everyone accepts that public safety is paramount, so let us park that for a moment. I commend the rehabilitative work that the Scottish Prison Service does. It is absolutely vital and that is what it should all be about.

I want to ask about a particular category of prisoner. A sizeable percentage of the prison population are people with drug or alcohol addiction issues. I would not want us to be in a situation where there is no realisation that lapsing is part of those illnesses. What regard is there for those circumstances in decisions around home detention curfew?

Colin McConnell

We would hope that someone who is granted HDC would continue with any therapeutic process that they were following in custody. However, we cannot insist on that and ultimately it is a matter of choice. It is linked to the provision of other services in the community, because, in the main, HDC is only granted to people who are serving less than four years, which means that there is no statutory provision for them in the community, although there is voluntary provision, which they can decide to access or not. As we engage with people moving through the process and going through the transition back to the community, all of us—agencies based in the community as well as those of us who are based in the custodial environment—try to encourage people to engage as productively as possible with all the services that may help them to resettle appropriately.

John Finnie

Would it be established whether there is a service available for someone to engage with?

Colin McConnell

Most certainly.

John Finnie

That is reassuring.

Wendy Sinclair-Gieben

That is one of the things that has changed in the guidance. Previously, licence conditions would be attached with no guarantee that criminal justice social work would be able to monitor or support those conditions. Now, there has to be a written acceptance and agreement in place before HDC can be granted. There is a shift in that direction.

The Convener

That is reassuring.

Shona Robison

We have touched on the presumption against release on HDC. I want to focus on the numbers in light of that. The fall in the number of HDCs that are granted is already quite dramatic—75 per cent was cited. Does the panel anticipate that the extension of presumption against release on HDC to offences involving violence, possession of a weapon or links to serious organised crime will lead to a further fall?

I was particularly interested in Wendy Sinclair-Gieben’s comment about the need for an independent evaluation, maybe three to five years down the line from the introduction of HDC. Would that focus on the quite dramatic changes that have happened? Colin McConnell said he would be particularly interested in whether they have had an impact on the prison population, but there would also presumably be interest in the outcomes for those who have been granted HDC. It would be interesting to hear more about that and, first of all, the numbers and whether there will be another drop.

Colin McConnell

That is a hard question to answer. As I have already said to the committee, the population is not going to change that much, in terms of the back stories that people bring with them. In most cases, we are seeing the outworking of the back stories of people who make their way into custody. Depending on how far back we think that it is reasonable to consider those back stories, we can say that most people who head our way will have engaged in violence in some way. Will the numbers stay the same? I think that they will stabilise over time. I doubt whether we will see them shift up the way. We have moved between a position of having somewhere between 25 and 30 grants per week to having somewhere around seven. Do I see that going up to 10, 12 or 15? Probably not. I think that it will be at the lower end, over time, because, generally speaking, the population that is in custody has a back story. For most people, that will involve some level of violence.

Shona Robison

How much discretion will there be on whether an offence involves violence? As you said, that could cover many offenders. So that I can understand the process of the presumption against release, can you tell me whether, in the guidance, that will ultimately come down to the judgment of the governor? How clear is that guidance?

Colin McConnell

Again, that is a really important and strategic issue for the justice system. Let us be clear about this: my guidance to governors is to be cautious and to take a broad look at someone’s offending history. If there is any indication that anybody has used a weapon or an implement against another person or any indication of meaningful or serious violence, no matter how far back that was, my encouragement to governors is to be cautious. The presumption would be that I would be reluctant to grant someone with such a back story HDC, and that is the guidance that I am giving to my governors now. Over time, if we have a mature discussion about that in the light of experience, a different consideration might well emerge. However, that will be based on experience and mature discussion. It may be that my approach and SPS’s approach is viewed as being currently far too narrow and too conservative—with a small C—and that perhaps a more informed and mature view will emerge over time. However, at the moment, our approach is reasonable, and probably necessary, in order for us to establish some confidence in the HDC decision-making process.

Shona Robison

What about the evaluation that Wendy Sinclair-Gieben suggested?

Wendy Sinclair-Gieben

I think that there need to be two evaluations. One is required because HDC has been in place for a number of years and we now need to evaluate how effective HDC was before the changes, in order to inform our decisions as to how to move forward.

We do not even collect the reconviction rates, and we should. We also need to look at reintegration. I am not sure how we would research that, but it would be very interesting to compare how the reconviction rates stack up against those for people who have just been released from prison and people on community orders. That is an important point.

Anecdotally, many prisoners say to us that HDC was a wake-up call. They got out of prison and could rethink their lives. On HDC, they had time in which to change their lives and start again. That is anecdotal experience, and we need to back it up with proper research.

The second part is that we should have a second evaluation after the current system has been in place—how many years it should be in place is something that needs to be decided. We will have the first evaluation and the reconviction statistics, and the second evaluation will tell us whether it is being useful as a reintegration tool or whether reducing HDC has seen a rise in the reconviction rates. The two evaluations are critical before we can decide whether the previous and current systems have been good, bad or indifferent.

Shona Robison

That is helpful.

Fulton MacGregor

Mr McConnell will be glad to know that my line of questioning is more on compliance than enforcement, so it is probably aimed at Garry McEwan in the first instance. What arrangements are in place for non-compliance? Can you take us through the police process when somebody breaches the curfew?

Chief Superintendent McEwan

When the prison governor initially decides that a person will be released back into the community on a home detention curfew, the police are sent a notification, which now comes to a single point of contact. I call it “the single point of success”, because one of the key issues that was identified previously was that there were multiple points of failure. In the old world, notification went to a number of different email addresses, because of the previous force arrangements. Those emails sometimes reached the source and sometimes they did not.

We get the notification and the individual is then released into the community and, rightly, allowed to go about their business. The person wears a tag that is monitored by the supplier—G4S, in Scotland—which is alerted if the individual breaches the curfew. There are four key breaches: removing or tampering with the device; leaving the house during the time when the curfew states that the individual must stay indoors—for example, from 10 o’clock every night until 8 o’clock the following morning; commission of another offence; and the more general breach, which is failure to keep the peace.

When a person breaches the conditions, G4S notifies the governor of the prison from which the person was released, and the governor then decides whether to inform the police that the individual is now unlawfully at large. I sounded hesitant for a moment there, because on some occasions the governor might not do that, but might instead get back to G4S to check whether the tag is faulty or whatever.

The individual is not declared to be unlawfully at large on all occasions, but when they are we get a revocation of licence, which is formal documentation from the Scottish Prison Service. We disseminate that to the area where we believe the person resides and local police officers will attempt to arrest the person as part of the revocation of licence. He or she is then taken back to the jail at the earliest opportunity. That is the general process that is now in place between us and the Scottish Prison Service.

Fulton MacGregor

How quickly would you put officers out to search for an individual after getting that documentation from the SPS?

Chief Superintendent McEwan

We hope that that would happen within 24 hours. We get seven days’ notice of when a person is to be released on home detention curfew, and when they breach the home detention curfew we are likely to get formal notification of that from the SPS within 24 hours.

12:45  

Fulton MacGregor

You touched on your role in monitoring a person’s release. I assume that it is dependent on the situation and the offences, but can you explain more about that and how often it takes place?

Chief Superintendent McEwan

That is the role of G4S—it is the authority responsible for on-going monitoring. It has oversight and ownership of the devices, so G4S would probably be alerted to a breach before the police.

Fulton MacGregor

I am sorry. I did not make this clear: I was not referring to monitoring of the devices, but to police involvement in social work visits.

Chief Superintendent McEwan

We do not have a statutory role in visits, but we might well make unannounced visits as part of our routine policing, especially if there is intelligence to suggest that the person might be getting back into bad relationships, drugs, low-level shoplifting or whatever. In such cases, it is for local officers to make efforts to contact the person and, if required, to make referrals through the vulnerable persons database—perhaps to criminal justice social work. If an individual appears to be on the brink of reoffending but has not committed an offence, we have a key role in supporting that individual or, at least, in referring them for support.

Fulton MacGregor

Could that role be tightened up a wee bit to make visits a requirement? That is where I was going with my question. In such situations in my previous employment, police visits were established locally, as you suggest. They work really well, but given that the local police or other agencies might be able to pick up when a breach is likely, information could be going out from you as well as coming in from the SPS to you.

Chief Superintendent McEwan

The police have a role, but I caution against making that role obligatory. Such an individual has served their time: they are out and are a free citizen, albeit that they are under a home detention curfew. We therefore need to be careful about the role and responsibility of the police, and to recognise that criminal justice social work and other third party and voluntary organisations provide the support.

However, local officers are tuned into local intelligence, and local relationship building and unannounced visits happen regularly across the country, when there are opportunities for them.

Fulton MacGregor

Thank you. That was a useful question.

Where do home detention curfews sit in the priority list—that is maybe a crude term—compared with restriction of liberty orders and community payback orders? What priority is attached to the response when curfews are breached?

Chief Superintendent McEwan

A home detention curfew breach—the person being unlawfully at large—is now considered to be in category A in policing terms; therefore, it is as high risk as current outstanding warrants. We would seek to have the individual incarcerated and brought back into custody within 21 days of their being unlawfully at large.

However, as I said at a previous Justice Committee meeting about electronic monitoring, the current guidance is very restrictive in that we do not have the power to enter and search premises. We could go and check an address for a Garry McEwan, but we have no power of entry. By contrast, when a police officer has an apprehension warrant in his or her possession, they can force entry to any house and search it for an individual. As I said at that previous meeting, there is a gap in terms of the legislation and that power.

There is another gap that I probably did not articulate in the best way, previously. I have tried to explain the process between G4S, the governor and the police. However, a police officer might come across an individual at 3 o’clock in the morning—I call it “the 3 o’clock in the morning”—when G4S is not aware that the individual has breached their curfew. In my mind, they present great risk because they have breached their curfew and are out doing whatever they are doing, but the police have no power of arrest in that situation. We can note details, but if the person is committing no other offence, we have to allow them to go on their way. That is a real vulnerability

At the previous evidence session that I attended, I mentioned that the police should be afforded the power to arrest an individual who is not officially accused; we could take the individual into custody and the governor and others would be notified very soon after that. At the moment, we note the details, allow the individual to go on their way and, as soon as possible, notify the governor that the individual has breached the curfew.

Fulton MacGregor

Would it be useful to include a power of arrest in the bill?

Chief Superintendent McEwan

That would be very useful. I encourage the committee to support the inclusion of a power of arrest of people who are found, in real time, to have breached their home detention curfew and, in addition, the inclusion of powers of entry and search.

Fulton MacGregor

Thank you. For the record, convener, I would like to clarify that I was referring earlier to good answers that we have received to questions—I was not praising my own questions. Someone may have picked up on that.

Daniel Johnson

One of the key issues relates to individuals who are on home detention curfews and who either reside in other jurisdictions or move abroad. If someone has an address in England, what is the procedure for ensuring that they do not breach the curfew, and what happens if they do breach it?

Chief Superintendent McEwan

That is currently done through the single point of success that I referred to. The SPS notifies Police Scotland and we put the information on the police national computer and the criminal history system. Those national systems can notify officers anywhere in the country of the details of such an individual. The SPS receives a notification. The information is on those IT systems, and we notify the relevant police force in England and Wales that the individual is unlawfully at large, and pass the paperwork from the SPS to that force. It is then its responsibility to prioritise incarceration of the individual.

Daniel Johnson

Would the police be relying on English law? Is it correct that being unlawfully at large is an offence in England but not in Scotland?

Chief Superintendent McEwan

No. Where the custody originates in Scotland, Scottish legislation would apply.

Colin McConnell

I am not a lawyer, but I would have thought that Scottish legislation would apply.

Daniel Johnson

I will ask a blunt question regarding the McClelland case. Why did it take 69 days from the point of breach and notification of it, to the point when police knocked on the door? Was it because you did not update the SPS with the current email address? That seems to be one of the implications of your previous answer.

Chief Superintendent McEwan

No—that was not meant to be implied. You are talking about the tragic killing of Craig McClelland. HMICS carried out a review of the processes and found that they were followed correctly, including notification of Police Scotland by the Scottish Prison Service and updating of the national computer system. I was referring to the previous situation when I mentioned issues with emails. That did not happen in the tragic case of Craig McClelland and the release of Mr Wright. The HMICS commented that the processes were followed as they should have been.

Daniel Johnson

Why did it take 69 days?

Gill Imery

I will clarify: as far as the notification process is concerned, Chief Superintendent McEwan is correct. It was followed in that particular instance and the notification was made well within 24 hours. The HMICS review was clear, however, that what happened afterwards was not acceptable, and that there was insufficient evidence to demonstrate that a professional level of inquiry had been made in order to apprehend James Wright and return him to prison.

Daniel Johnson

Would changing the category to category A be sufficient to ensure the correct level of response in the future? What would you like to happen?

Gill Imery

It was a category A incident. The period was 14 days, under the previous standard operating procedures. There is an explanation in the report of the difference between a home detention curfew breach, a revocation licence and a warrant. Even for a high-priority warrant, the period allowed would be 21 days. Regardless, Police Scotland did not manage to meet the deadline. The deadline has not changed, and there was nothing wrong with the standard operating procedures that existed—it was just that they were not followed.

Daniel Johnson

That is quite a serious allegation.

Gill Imery

Yes.

Liam Kerr

I want to go back to the line of questioning that Fulton MacGregor pursued. Chief Superintendent McEwan—if I may, I will summarise briefly and reflect back what you said. If the police suspect a breach of home detention curfew, there is no power of arrest at that point. If the SPS revokes a licence, you can arrest the person, but you cannot enter premises to do a search. I believe that the facility exists in England and Wales to do such things. You said to Mr MacGregor that you believe that the bill should allow you to arrest the person on suspicion of a breach. Can we extrapolate from that that you believe that you need an offence of being unlawfully at large and/or the ability to enter and search premises for people who have had a licence revoked?

Chief Superintendent McEwan

There are probably three aspects to that. The first is a power of forced entry and search, and I think that that would absolutely be advantageous. The second is a power of arrest in the 3 o’clock in the morning scenario, where the police are the first organisation to find the individual, before the formal process. I think that the police would benefit from a power of arrest at that point.

The third aspect is an additional charge of breaching the revocation licence. I would also support that. I am probably stepping into other territory here, but when somebody breaks out of prison, that is an offence. As things stand, when a person breaches their home detention curfew, they are simply taken back to prison, where they serve the remainder of their sentence. There is no punishment and no deterrent to discourage the individual from breaching the curfew. The curfew could be subject to review in three or five years, but its being an offence would be an additional deterrent to prevent individuals from breaching home detention curfews.

Liam Kerr

That is very helpful. Thank you.

The Convener

Finally, I have a question about communication, which both inspectors have mentioned. A scenario in which there would be a legitimate reason for a breach is where the person has been rushed to hospital and is not where they are supposed to be for that reason. Is there a problem with getting that information from hospitals because of data protection legislation? When we visited the Wise Group, it suggested that that is an issue. Have you come across that? More generally, how could communication, which is a theme that runs through so many reports on the police and other organisations, be improved?

Gill Imery

HMICS has not come across that scenario. Chief Superintendent McEwan mentioned a number of reasons why an individual might technically not be complying with their tag, but would not necessarily be in breach by committing another crime or being unlawfully at large.

More widely, communication was absolutely a feature of the review that HMICS carried out. Chief Superintendent McEwan mentioned the single point of contact that has been established. We have not had an opportunity to test that yet, but as the committee will be aware, we will revisit the home detention curfew process in six months, when we will be able to assess the difference that the single point of contact has made to the two-way communication between Police Scotland and the Scottish Prison Service.

The Convener

I will also pose the question to Wendy Sinclair-Gieben, given her comments on recall and the need for more communication. I think that you have said that more communication is needed between the SPS and the police, but perhaps we should add the NHS to that.

13:00  

Wendy Sinclair-Gieben

For me, communication is one of the key points in the report. By the way, please just call me “Sinclair”, as the second half of my name is much too difficult. [Laughter.]

We made recommendations on a number of areas of communication. One that interested me is to do with when a person has breached their licence or is expecting revocation. We do not inform them, but we should be sending them a letter. I know that a number of people have ended up breaching their licence because of a technical system failure; they are dutifully at home in bed, but there is a technical system failure. I do not have statistics on that to hand, however.

However, communication is key: one of the key points that we made is about communication—of the history of offending or intelligence that is held about serious and organised crime—between the police and the people who make the decision about whether to release. Continued communication between the police and the SPS is also key.

I also agree with the convener that the NHS should be included; there should be a way in which the NHS, when it finds that the person has a tag—they are not hard to spot—can access a single point of contact to inform the police that the person has come into hospital if, say, they are unconscious. There are numerous reasons why people end up breaching that are no fault of their own. Being in hospital is just one of them.

The Convener

We would be interested to see written evidence of examples of where Police Scotland has been refused information under data protection rules. Obviously, the better we can identify legitimate reasons for breaches, the better we can target people who breach and are a danger to the public.

Wendy Sinclair-Gieben

The SPS would provide that evidence.

The Convener

Absolutely.

That concludes our questioning. I thank the panellists for a very worthwhile session.

13:02 Meeting suspended.  

13:02 On resuming—  

The Convener

Agenda item 3 is an evidence-taking session on the Management of Offenders (Scotland) Bill. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper.

I welcome to the meeting John Watt, chair of the Parole Board for Scotland; Yvonne Gailey, chief executive of the Risk Management Authority; Dr Johanna Brown, a consultant forensic psychiatrist and member of the Royal College of Psychiatrists in Scotland; and James Maybee, the principal officer for criminal justice and the interim chief social work officer in Highland Council, who is representing Social Work Scotland. I thank the witnesses for the written evidence, which, as ever, has been really helpful to the committee in advance of our hearing from them in person.

We move straight to questions from members, starting with John Finnie.

John Finnie

Good morning, panel, and thank you for your written submissions.

I want to ask about the new arrangements and the improved information sharing that we have been advised of. Who takes the decisions? At what level are they taken?

The Convener

Who would like to start? If we do not have volunteers, we will have conscripts. Can we try you, Mr Watt?

John Watt (Parole Board for Scotland)

What stage of the process are we talking about, Mr Finnie?

John Finnie

It is the point at which the Scottish Prison Service assesses someone’s suitability for home detention.

John Watt

In that case, I can sit back, because at that stage the issue has not come before the Parole Board.

The Convener

Would anyone else like to start off, then? Mr Maybee?

James Maybee (Social Work Scotland)

Obviously, criminal justice social work is involved in the home detention curfew assessment process. A written assessment is requested of us, which we submit to the Scottish Prison Service for consideration as part of its decision-making process. Ultimately, it is the SPS’s decision whether to release someone on HDC.

John Finnie

Is that a change from the previous arrangements?

James Maybee

No. Criminal justice social work has always provided an assessment report to the Scottish Prison Service.

John Finnie

Okay. It is said that the aim is to improve information sharing, but has there ever been an issue in that respect between the Scottish Prison Service and criminal justice social work?

James Maybee

Information exchange has generally been very good. We work to the current HDC guidance, which was refreshed a couple of years ago and which I believe is subject to further review. A joint SPS, Police Scotland and Scottish Government working group has been looking at that issue, and Social Work Scotland is formulating its response to the social work aspects of that report. However, that response has not yet been brought to the Social Work Scotland justice standing committee.

John Finnie

We are primarily taking this evidence because of a very tragic case that has focused a lot of minds on the matter. We had—not unreasonably—expected something else. You have suggested that existing arrangements are being refreshed, but are you saying that, as far as you are aware, there have been no difficulties at all with information sharing?

James Maybee

There has always been a clear set of guidance on HDC, and the criminal justice social work responsibilities are set out very clearly. For example, the guidance that was introduced a couple of years ago set out in a much clearer way our responsibilities with regard to conducting home visits. We have to ensure that there is not just, say, a telephone conversation with the home owner, but a physical visit to ascertain the circumstances in relation to the prisoner’s proposed property and residence.

John Finnie

Okay. Let me take a different tack, then. The Scottish Prison Service has told us in evidence that there is now a presumption against home detention curfews and that that has led to a 75 per cent reduction in their use. Is it therefore reasonable to suggest that risk aversion has crept in that was not there previously? I am trying to understand the wider implications for prison capacity and the very important issue of rehabilitation. Can all the panel members comment on that, please?

James Maybee

With respect, Mr Finnie, I think that that will be difficult. There is no representative from the Scottish Prison Service here, and I can speak only from my agency’s perspective. When we are requested to provide an assessment, we will do so in accordance with the guidance. What triggers a request is entirely a matter for the Scottish Prison Service. All that we can do is respond to that request and provide the assessment, ensuring that it contains sufficient detail to enable the Scottish Prison Service to undertake a fuller and more rounded risk assessment of whether somebody qualifies for release.

John Finnie

If, as we have been advised, there has been a 75 per cent reduction in the granting of these curfews, is it still too early to see any manifestation of that in the work load of criminal justice social work?

James Maybee

I cannot sit here and say that I can quote you figures for HDC requests. It might suggest that the Scottish Prison Service has taken a slightly different tack, perhaps in light of media coverage and concerns about prisoners being released on HDC. However, I am afraid that I cannot say much more than that.

11:15  

The Convener

Miss Gailey, do you have a view on that from a risk assessment viewpoint?

Yvonne Gailey (Risk Management Authority)

Thank you for inviting us to be here today.

I have an interest in HDC from the perspective of risk assessment, which is the only perspective I can comment on. I cannot speak about operational processes. We have recently been invited to join a group run by the Scottish Government and the Scottish Prison Service to review the guidance for HDC with a particular focus on the risk assessment process. That has a bearing on the questions that Mr Finnie asked about the reduction in numbers.

The group had its first meeting last week. One of the points made at that meeting was that, if a risk assessment process is being refined, and there is an argument for doing that, there is a need to start from a clear understanding of the purpose of the intervention that is being assessed. The recent introduction of the presumptions against HDC has inadvertently or on purpose—it is not for me to say—raised the question of the purpose of HDC, its intention and what it is in place to achieve. It is from that perspective that we can work out the correct risk assessment process and have as clear an idea as possible of who the right candidates for HDC are.

John Finnie

If there is a reduction of 75 per cent, as we are told by the chief executive of the Scottish Prison Service, that suggests that there was a frailty in the previous system, and that there is a new, robust regime in place. Do you have a view? Were the previous arrangements satisfactory? That has to be acknowledged as a dramatic turnaround in figures.

Yvonne Gailey

I cannot comment on the operational arrangements as opposed to the risk assessment process.

John Finnie

Surely they are one and the same thing? The whole basis of the Scottish Prison Service and the judicial process should be about risk assessment in terms of the suitability of someone for HDC and the requirement that they be put in custody in the first place.

Yvonne Gailey

To answer the question in a robust way, we would need to take up the recommendation of HM inspectorate of prisons for Scotland on the research needed on the home detention curfew, both to understand what has happened in the past and to guide the way forward. I am not aware of evidence currently available to tell us what we need to know, although that could be my lack of knowledge. We understand that there has been an 80 per cent successful completion rate in HDC. In order to answer the question, it would be interesting to know the circumstances and characteristics of the 80 per cent of successful cases and of the 20 per cent of cases that did not complete successfully. From that, we could understand the reason for the dramatic reduction and whether that is the direction of travel that we wish to go in.

John Finnie

Were any of the panel members aware of the Scottish Prison Service’s change in the presumption arrangements and did any of your organisations play any part in informing the change?

Yvonne Gailey

My organisation’s first involvement was when we were asked to take part in the recently established group.

The Convener

It would be helpful if you could explain about the Risk Management Authority, who appoints you, what you do and at what stage in any process you might have input.

Yvonne Gailey

We have a number of statutory functions, all of which have a bearing on effective risk assessment and risk management practice. The one that is most relevant to the discussion is the responsibility to set the standards for risk assessment against which practice is judged generally. We also have specific responsibilities in relation to the order for lifelong restriction.

For our discussions today, it is our more general functions that are relevant, which are advising on policy and research, setting standards, delivering training and publishing guidelines, all in relation to risk assessment and risk management.

The Convener

Did you have concerns prior to the new rules coming into being? Were any general or, indeed, specific concerns raised from a risk assessment point of view?

Yvonne Gailey

No concerns were raised specifically on HDC. As I said, our first direct involvement has been in recent times. I have talked about us generally setting standards, but we are also involved in different risk assessment processes at different points in time, so that we can give advice on developing current practice processes into those that will aspire more closely to the standard that we have set. In recent times, colleagues of mine have been involved in work with the Scottish Prison Service to look generally at the risk assessment of short-term prisoners. There is a close overlap between that work and the discussions on HDC. That might be the most direct route of influencing the risk assessment of HDC.

The Convener

That is helpful in clarifying that you have looked at risk assessment for those with short-term sentences, but not specifically for HDC. Clearly, you think that there is now an argument for looking at HDC.

Yvonne Gailey

There is a basic approach to risk assessment that can be applied in any situation, with any group and in any context. We have set the standard for that type of risk assessment. We work steadily through different processes and with different agencies to integrate that approach. It is well integrated in criminal justice social work processes and in Police Scotland. In certain areas of work with the Scottish Prison Service, that approach is already well integrated, and the work that we are currently doing together looks at short-term prisoners. That issue raises particular challenges.

The Convener

We have supplementaries from Liam Kerr and Daniel Johnson. Is that right?

Liam Kerr

No, but since you are bringing me in—

The Convener

Perhaps the questions have moved on from where you were going to come in.

Liam Kerr

I will happily ask Yvonne Gailey a question, if I may. You talked about risk assessment; risk to whom and risk of what? John Finnie mentioned that there has been a 75 per cent reduction in the use of HDC, which clearly has a negative impact on prison overcrowding and opportunities for rehabilitation. One would have thought that the overriding consideration is risk to the public from allowing people out on HDC. Is that the case?

Yvonne Gailey

That is an excellent question, and it is a fundamental question when we talk about risk. In any practice process or set of guidelines that are developed, it is essential to identify what we mean by the term “risk”. Often, several different risks are involved.

In relation to the Risk Management Authority’s work, the legislation is very specific that we are talking about the risk of serious harm to the public. In most areas of work, that is a primary consideration. In certain aspects of work in the criminal justice system, when people talk about risk they are thinking about the likelihood of reoffending, which is also a valid concern at times.

When we talk about risk, we need to consider a combination of the likelihood of something happening, the impact that that will have on whom and how serious that impact is estimated to be. There are a number of dimensions to risk, but it is always essential to identify what you are assessing and what you are estimating or forecasting in your risk assessment. What person or what group of people is at risk from a particular person? What is the nature of that risk?

Liam Kerr

Thank you for that answer, but I am not sure that I heard you say where the priority lies. I would have thought that the key priority is preventing harm to the public. Is that the case?

Secondly, you talked about the prevention of serious harm. I am slightly concerned about that because you have triggered something in my mind that I cannot quite put my finger on. Does the term “serious” refer to the possibility or, indeed, probability of harm to the public such that if it is not serious harm, the decision could be taken to allow someone to go out on HDC?

Yvonne Gailey

Thank you for clarifying that. I was unsure whether we were speaking generally or in relation to HDC. I wonder whether you are referring to the three guiding principles for HDC. Can you clarify that, when you talk about risk of harm to others or to the public being a priority, you are talking about that risk of harm as opposed to another? I am not quite clear what you are asking me about. When we talk about risk assessment, what will always be foremost in someone’s mind is risk of harm to others, whether specific or to the public at large.

Liam Kerr

Is that harm clarified or caveated by a category of seriousness? Or does it refer to any harm to the public?

Yvonne Gailey

If we are talking about the HDC guidance, that caveat or clarification is not there. I have read through the guidance several times and it appears to me that the risk that is being considered is risk of harm to the public.

Liam Kerr

And that is the top priority or consideration.

Yvonne Gailey

At the beginning of the HDC guidance, there is a reference to there being three objectives or three guiding principles or considerations that must come into play: the protection of the public; the prevention of reoffending; and reintegration. In a situation where there was a choice to be made about one of those trumping the others, then risk of harm to others would win out. However, in reality, those working in that context must balance all three considerations, because reducing reoffending and promoting the safe reintegration of prisoners into the community are two of the best ways of protecting the public. There is therefore not an either/or choice in terms of those considerations. However, if there was a situation in which one consideration had to win out, it would be that of protecting the public; my reading of the HDC guidance suggests that that is the priority. I think, though, that there is scope for clarification of the guidance material along the lines that you are talking about in order to make it absolutely clear that risk of harm to others is the priority consideration.

The Convener

I think that we would agree with that. Daniel Johnson has a supplementary question.

Daniel Johnson

I want to follow on from points that John Finnie raised about the role of social work in assessment and information sharing, and particularly where he left off regarding the assessment of homes. Clearly, in the Craig McClelland case, where the individual who murdered him resided was in question. How is such information shared? Is that information acted on? When someone is not present at the address that they have given or concerns are raised about the likelihood of their reoffending in connection with that, is that information, or are those concerns, acted on? In addition, when people give addresses that are outside Scotland, which is a concern that was raised through the McClelland case, what happens in those circumstances? How is that assessed?

James Maybee

The guidance on the criminal justice social work role states very clearly that we must visit an address that is put forward for HDC. There are two caveats to that: one is where the individual is the sole keyholder of the address—that is, it is their own property; and the other is about remoteness, because there are significant geographical challenges in visiting addresses in some parts of Scotland.

The overriding focus is on visiting the address; that is clear. The word used in the guidance is “must”. If an assessment report is completed by the criminal justice social worker and is returned to the Scottish Prison Service and the home has not been visited and it has not been made clear why, the SPS is perfectly within its rights to contact the criminal justice social work service and ask for an explanation, and then seek further information and clarity about the address. There is absolute clarity around that.

11:30  

Daniel Johnson

By implication, you do not necessarily know how that information is being used.

James Maybee

No, and that is perhaps one of the issues. It might be helpful to refer to the “Report on the Review of the Arrangements for Home Detention Curfew within the Scottish Prison Service” that was published in October 2018. A number of recommendations come out of that particular piece of work, one of which is:

“The assessment process should therefore be reviewed to ensure that it can satisfy the assertion within the guidance that:

‘… a robust assessment process has been developed …’

However, it must be recognised that the SPS is not currently funded or staffed to undertake a more detailed multi-disciplinary approach to HDC risk assessment, and as such the financial and resource implications would need to be addressed and appropriate funding provided”.

Recommendation 3 states:

“Specific training in risk evaluation and assessment must be provided to individuals or teams tasked with making the decision to release someone on HDC.”

It is an issue that, although information from criminal justice social work goes back to the SPS, it is the decision-making forum and we have no input into the final decision, which is made entirely internally within the SPS. There have been occasions, certainly within my local authority, when we have given information to the SPS and have taken issue with its decision, because we believed that the information that we provided was of significant concern and that HDC was not appropriate.

My reading of the recommendations is that there is a move towards having more of a multi-agency framework for decision-making and ensuring that SPS staff are properly trained in the tenets of risk assessment. I refer to Yvonne Gailey’s points. In Scotland, we all work to the risk assessment management and evaluation framework that sets out the core tenets of how we should approach risk assessment and risk management. It is about ensuring that the circle is closed.

I do not want to sit here and seem to be unnecessarily critical of the SPS. It is just about understanding the process and how all the parts of the journey link together.

Daniel Johnson

That is helpful. I do not want to put you on the spot and ask you to characterise some of those situations, but if it were possible for you to provide some examples, bearing it in mind that there will be confidential elements to them, of your information not necessarily being acted on, that would be useful for the committee’s deliberations. Can I just touch—

The Convener

Jenny Gilruth has a supplementary question, if you do not mind Daniel. It is on an area that Jenny has already indicated an interest in. If your question has not been answered after hers, I will bring you back in.

Jenny Gilruth

I would like to drill down into some of the written evidence that we received ahead of today’s meeting.

I note from Social Work Scotland’s written evidence that it would have reservations about the use of electronic monitoring as an alternative to lower-tariff disposals. The submission goes on to say:

“there is a risk that a two-tier system would be created in which EM is used disproportionately with those on low incomes.”

Why might that be the case?

James Maybee

Social Work Scotland is not convinced by the argument that EM should be used for offences such as fine defaults, for example. Our concern is that there is a risk that EM would become the default option and that because someone cannot afford to pay, they would get EM. There are lots of ethical issues around EM and proportionality. It is a restriction of somebody’s liberty in a way that fining them is not. These things have to be taken into consideration when thinking about whether EM is a proportionate disposal or sentence for people who present a much lower risk.

Jenny Gilruth

I want to follow up with a question on any additional conditions that might be attached, other than the curfew. In your submission, you say that

“guidance for GPS monitoring should involve clearly defined boundaries for buffer and exclusion zones”

and that

“It is imperative that boundaries are unambiguous and clearly outlined for those subject to restriction.”

You then go on to talk about the implications of that in terms of resource and staffing. Are there any other issues with GPS in terms of rurality? I think that that issue is also alluded to in your submission. Further, has Social Work Scotland considered the issue of training?

James Maybee

With regard to GPS, there are issues about remoteness and whether the equipment will function consistently enough to enable it to do its job. Technology is developing all the time and so on, but I am not sure that we can be absolutely confident that problems will not arise.

The question of the resources around how GPS will be used is interesting because, to a certain extent, we do not know the answer to that from a Scottish perspective, although we can look at what is happening internationally.

The answer depends on the way in which GPS is used. For example, are we talking about active GPS monitoring or passive GPS monitoring? If we are doing active monitoring, which involves monitoring the movements of an offender in real time 24/7, there is clearly an issue in terms of resource, who does that, how the information is shared and so on. We can certainly learn from colleagues in other jurisdictions and internationally, but it would be hard to say that there would be no additional costs—indeed, I think that there probably would be. In such a system, resources have to kick in quickly when someone steps over an exclusion line, because there is an assumption that someone has breached that line with intention. It might be that there is a perfectly reasonable explanation for that breach but, until you know that, you have to assume that someone is potentially at risk—if that were not the case, obviously, an exclusion zone would not have been set up. Clearly, such a system would involve resource implications not only for criminal justice social work but for agencies such as Police Scotland and the courts service.

Passive monitoring involves a slightly different situation. It involves reviewing someone’s movements over the course of a day, for example, to see whether they have breached their exclusion zones, and then deciding what action to take.

The Convener

Daniel Johnson has a follow-up question on the home detention curfew, and Liam McArthur wants to come in after that. After those questions, we will move on to release on parole. I am conscious that Dr Brown and Mr Watt have not spoken yet, but they will get a chance.

John Watt

I am quite happy.

Daniel Johnson

I have questions about Mr Maybee’s comment on developing a multi-agency response and, more broadly, about what Yvonne Gailey’s organisation is responsible for.

Mr Maybee talked about the details in the reports of HM inspectorate of constabulary in Scotland and HM inspectorate of prisons for Scotland. Further, HMIPS said that the processes that were in place were not what it would describe as being robust. What are your reflections on those reports, Ms Gailey? What do you think are the key issues that need to be developed, bearing in mind your direct perspective on multi-agency working and the development of risk management standards? What do you think is the gap that has been identified by those two reports?

Yvonne Gailey

I find myself in almost complete agreement with the recommendations on risk assessment in the prisons inspectorate’s report, although I come at the issues from a slightly different angle.

Last week, I shared with my colleagues my view that we have in place only part of the risk assessment practice. Essentially, we promote an approach that involves a risk assessment process that has three core steps: identifying the relevant information; analysing the meaning and the relevance of the information; and evaluating all that to inform the decisions that you are charged to make.

Currently, the risk assessment process sets out a range of information that the person who is doing the assessment is required to identify. The information that they are required to identify is very rational and is evidence-based. It involves the kind of behaviours that have happened in the past and the kinds of behaviours that can be taken into account currently that might suggest whether someone is likely or less likely to comply. However, the process does not then go to the next stage and give the person who is doing the assessment some guidance on what to do with that information.

One of the questions concerns whether there has been adverse behaviour in prison, and the assessor considers whether or not there has been. However, it then falls to the person doing the assessment to discern the meaning of that and then to decide the implications of that meaning for the recommendation about HDC.

In those two areas, there is a need for further guidance for the practitioner—generally, a middle management prison officer—who is undertaking the HDC assessments before they go to the governor for sign-off. It is perfectly achievable for us to work with the Scottish Government and the Scottish Prison Service to refine that process to make it that bit more robust by including that additional guidance and by determining, as the prisons inspectorate has recommended, what element of training is required to support that.

I also support the recommendation about the need for some analysis of the use of HDC in the past and currently.

Daniel Johnson

When representatives of the SPS came to the committee recently, they told us that they were upholding the regulations, such as they were, up until the point when they changed. On the basis of the report that we have from HMIPS, do you think that that is correct?

Yvonne Gailey

When you talk about the change in the regulations, are you talking about the presumption against HDC being introduced?

Daniel Johnson

Essentially, the representatives of the SPS told us that they were complying in full with the regulations, such as they were, and that no deficiencies had been exposed in terms of them following the regulations as set out. Do you agree with that?

Yvonne Gailey

You must understand that I do not have access to any of the details in that regard, but my understanding is that the SPS and the inspectorate found that the process was followed correctly.

James Maybee

It might be helpful to give a bit of context around risk assessment. For example, a criminal justice social worker must undergo a five-day training course—with pre and post-course evaluation—to gain accreditation and to be able to use the level of service/case management inventory, or LS/CMI, risk/need assessment tool. This is not a criticism of the SPS and the HDC process, but short-term prisoners—those who receive prison sentences of less than four years—might not have a criminal justice social work report prepared at the court stage; they might just go straight to prison for that short period without the sort of formal risk assessment that would previously have been carried out. It is therefore reasonable to ask whether all that information is being handled in a systematic and structured way that involves pulling the information together, assessing it and then evaluating it. For long-term prisoners—those who received prison sentences of four years and longer—there will be formal risk assessment that SPS can use as a basis for developing its judgment around HDC.

I stress again that I am not being critical of the SPS, and I do not doubt that the response that you got from the SPS was absolutely correct and that it is following the current process with regard to HDC. However, I think that we would not have the recommendations if there were not some gaps that we need to consider in order to improve and tighten up the system to ensure that we have the best possible decision making around HDC.

There are a number of reasons why HDC is a good thing. It tests out prisoners who are coming to the end of their sentences and it helps them to re-establish connections with their communities, families and friends and to start looking for work. However, we must ensure public protection and community safety, and we must have an absolutely robust system in place to do that.

The Convener

As you say, we want the very best system.

11:45  

Liam Kerr

Currently, when a person breaches an HDC they do not commit an offence. The HMICS report from October states that there should be such an offence. Does the panel have a view on that? Do you agree?

The Convener

Right, who wants to answer? Is the question directed at anyone in particular?

Liam Kerr

Not really, but perhaps James Maybee could answer. Should a breach of HDC be an offence, given what you said in answer to Daniel Johnson’s question?

James Maybee

I can give you a personal, not a Social Work Scotland response. I think that there would be merit in considering that. There is a cause and effect and there is an issue of personal responsibility in adhering to that. Breaches of, for example, community payback orders or prison licences have clear consequences in that an individual is held to account for a breach of such an order. It does not necessarily follow that a sanction is imposed—for breaching a CPO, for instance—but the person has to go back, state their case and be held responsible for the fact that they have not complied with the conditions of the order. It is right to consider making it an offence, but I would not argue that it necessarily follows that there would be a sanction in every case, although that may be a consideration.

Liam Kerr

I understand. The committee heard at a previous evidence session that, if a police officer suspects at 3 o’clock in the morning that a person has breached their HDC conditions, there is currently no power to arrest that individual. The police view that was given to the committee was that there should be a power to arrest that person, simply on suspicion of having breached an HDC. Do any of the panel members disagree with that view?

John Watt

In my previous existence, I was a procurator fiscal. If a policeman suspects that there has been, or is likely to be, a breach of a bail order, they have the power to arrest without warrant. You can see parallels between an accused being on trust on a bail order and a prisoner being on trust in relation to a licence condition. I have forgotten who it was now, but I tend to agree with what the police service representative said—that without some kind of provision they feel powerless. There are arguments about what the police can and cannot do in certain circumstances without a warrant. Search without a warrant implies the power to break open lockfast places, for example, but in the 21st century there appears to be a reticence to do that. I can well see why the police would say, “Give us a statutory power,” and with a bit of luck they would be able to use it, and quickly.

Liam Kerr

Thank you. That is helpful.

The Convener

We move on to questions about parole.

Rona Mackay

It is now accepted that there were weaknesses in relation to HDC, and the figures that John Finnie quoted about a 75 per cent reduction speak for themselves. Are there lessons to be learned about parole, risk assessment and returning to custody from the previous experience?

John Watt

The experience of the failure of HDC?

Rona Mackay

Yes, in the light of recent tragic events.

John Watt

It is a difficult question to answer. Any decision that is based on risk requires three considerations, as far as we are concerned—the interests of the prisoner, the interests of third parties, usually victims, and the public community safety interest. If one of those takes priority it is community safety, but it is a balancing exercise. It is almost impossible to answer the question without seeing a case, because each decision has to be case specific.

For example, you could have a prisoner who is a relatively high risk and you would need a very tough management programme to manage that risk in the community before you were satisfied that you could make a decision to release. On the other hand, you might have a prisoner who is a lower risk of reoffending but if he reoffended it would be catastrophically serious, and you probably could not have a management plan in place to deal with that. You could have management plans that involve all sorts of satellite surveillance, GPS and what not, but sometimes you get to a point at which, if you need all that, the prisoner is probably too dangerous to release anyway.

It is a question that we cannot answer in advance. I know that the European Court of Human Rights, for example, is very wary of broad statements such as, “We will not do this” in relation to a particular process, because that may breach someone’s rights under the convention. For example, if we were to say that we will not release anyone who has been accused of violence or sexual offending, that would be struck down immediately. That is why we cannot answer that question in advance. If you showed me a case, I could talk you through it and explain the risk assessment and what is relevant to that case and that person.

Rona Mackay

I understand what you are saying, but in the light of recent tragic events and two reports that have recommended quite sweeping changes, have you re-evaluated how you deal with parole cases?

John Watt

No.

Rona Mackay

Okay. Dr Brown, what are your thoughts on whether a psychiatrist should still be involved and can you expand on the part of the bill that deals with that?

Dr Johanna Brown (Royal College of Psychiatrists in Scotland)

From our reading of the bill, we understand that psychiatrists would be precluded from being on the parole panel. However, we think that the presence of a psychiatrist is of benefit to the panel and that they should remain. Our written evidence outlines the reasons for that and the expertise that a psychiatrist would bring to the panel. Part of that is what we have heard about our involvement in risk assessment and part of it is our understanding of and experience in treating mental illnesses and the management of individuals within a prison setting and in the community.

Rona Mackay

Do you have any thoughts on that, Mr Watt?

John Watt

I was asked a question like that the last time that I came to the Parliament and I am pretty sure that that was shortly after a recruitment process. We were recruiting legal, psychiatric and general members and we had two applicants who were psychiatrists, one of whom we appointed. There does not appear to be an appetite out there.

Not only that, but the board appoints members to particular hearings in accordance with their availability. Even if we had psychiatrists, they would not necessarily be available for those cases that we needed them for. We try to use the psychiatrists that we have for those difficult and awkward cases that are usually at the state hospital. It would be very difficult to recruit the number of psychiatrists that would be needed to sit on all the cases that they might be useful on. That is just a fact of life.

We have a lot of NHS psychiatric service members—many of whom are senior nurses or who have a nursing background—who have a firm understanding of the process. Beyond that, it is very difficult to say how we would be able to get the number of psychiatrists to get them on to the cases that we would need them on, unless there was a dramatic change and we could appoint on an ad hoc basis.

Rona Mackay

Would you like to respond, Dr Brown?

Dr Brown

Within psychiatry in general, we are aware of recruitment issues at a variety of levels. We know that there have been difficulties in relation to the Parole Board and those difficulties remain. However, that does not necessarily mean that we should not be part of that process.

John Watt

My final point on that is that if the board considers that it needs the assistance of a psychiatrist, it can instruct that a psychiatrist carry out some work with the prisoner and attend the hearing as a witness to assist the tribunal in working its way through before arriving at a conclusion. The board makes its decision on the evidence before it. In some ways, having the professional evidence of a psychiatrist who has seen the prisoner for a particular purpose is perhaps as valuable as having a psychiatrist on the panel. It is not as though, in certain cases, we do not have the benefit of psychiatric evidence. Far from it—if we need it, we will go out and get it.

Rona Mackay

Does that mean that you have psychiatric evidence for certain cases?

John Watt

It is very unusual, but we do. I am going to the Orchard clinic tomorrow and I fully expect to have two psychiatrists there to explain the position.

Rona Mackay

Do you take that into account?

John Watt

Oh yes, absolutely.

The Convener

What do you think about the psychiatrist angle, Ms Gailey? Is it necessary for risk assessment?

Yvonne Gailey

At the point of the consultation on the changes to membership of the Parole Board, my view was that the previous arrangements, which required a number of people from different backgrounds, were quite helpful in maintaining a balance of views and expertise on the board. However, my view on that is from somewhat of a distance and I am sure that other witnesses know much more about it than I do.

The Convener

If I understood you correctly, Mr Watt, you were saying that if you think that you need a psychiatrist, you can call in that forensic expertise. That relies on you knowing and recognising that need. If there is a statutory obligation for the psychiatrist to be part of the team, the expertise is there from day 1, as soon as a case—

John Watt

It is—

The Convener

Please let me finish. We are looking at risk assessment, and highly emotive issues are involved. I, for one, would not want to leave the situation to chance; without the statutory obligation, we would in effect be leaving it to chance.

John Watt

It is not leaving it to chance. All members have very broad experience of the criminal justice system.

The Convener

I understand. You have made that point.

John Watt

We have 2,500 cases a year and one psychiatrist. It is hard to see how a system like the one that you have described—in which a psychiatrist looks at all the cases to make sure that we do not miss the one that needs a psychiatrist—would be possible. I spent a lifetime in the prosecution service identifying cases where there were peculiar issues, or in which one would seek a report from a psychologist or psychiatrist on a precautionary basis. If there is doubt about a case, we have enough members who could be approached. However, each case is informed by a dossier that one would expect to throw up a clue—a history of psychiatric illness, or something very peculiar about the case. That is where we look.

I am not conscious that there has been an issue—not in my time on the board, anyway—where we have misinterpreted a case and missed a prisoner who required some kind of psychiatric input. Usually, those cases are transfers from prison to secure or middle-secure psychiatric hospitals and a psychiatrist has been involved in the prison. We deal with long-term prisoners on sentences of four years or more, and there is usually an opportunity in prison for that kind of problem to be identified. The problem may not be resolved, but it will almost always be identified.

The Convener

We are returning to my initial point about the system being reliant on the board thinking that there is an issue. You think that you have enough general expertise with people who have some kind of psychiatric background. I want to bring in Dr Brown. It seems to me that your very specialised knowledge would be useful to have on a statutory basis, more generally, and certainly to pick up the expertise where it is required.

Dr Brown

That is the position that the Royal College of Psychiatrists in Scotland holds. As the panel knows, risk assessment is a very broad area. Psychiatry is part of that, as are many of our multidisciplinary and multi-agency colleagues. The specific knowledge and expertise that we bring is broader than that. Mr Watt mentioned the role of other health experts, including psychiatric nurses and clinical psychologists. Psychiatry brings knowledge of the treatment of illness—of what we can expect people to agree to, and to be involved with, in terms of their care. Looking forward to time in the community, it also looks at integration within community mental health teams and at whether they should be forensic led, and it defines the involvement of the Mental Health (Care and Treatment) (Scotland) Act 2003, should that be required. We have outlined a variety of levels of expertise, which we think should remain part of the Parole Board in a statutory way.

The Convener

I certainly found your submission compelling.

Rona Mackay

Miss Gailey, when you do risk assessment, does a person’s mental health not come into that? Is the presence of a mental health issue part of your decision on what the risk will be? If you do not know that, how can you do a proper risk assessment?

12:00  

Yvonne Gailey

Mental health is certainly a factor that would need to be considered when someone undertakes a risk assessment. The extent to which it is suspected that there are mental health issues would very much determine the kind of professional who needs to be involved in the assessment.

Rona Mackay

Who makes the judgment? Do you call in professional services because you think that there might be mental health issues? How does it work?

Yvonne Gailey

I will draw on the social work experience. If a criminal justice social worker was interviewing somebody to undertake an assessment, and if they felt that there were aspects of that person’s presentation that suggested that there might be mental health issues, it would be incumbent on them to approach a mental health professional.

Rona Mackay

A criminal justice social worker would do that.

Yvonne Gailey

Yes, or they would say to the person for whom they were providing the report, “I have concerns about certain issues, but I don’t have the competencies to assess them.” We either need to live with those issues being unassessed, or they need to be referred to the correct mental health professional.

Rona Mackay

Forgive me, but that sounds quite arbitrary—it might happen or it might not. Is it not essential to know whether someone has a mental health issue?

Yvonne Gailey

It certainly is, but that does not mean that there is always the resource to address that matter. What is central is that somebody does not attempt to assess something that they do not have the experience and expertise to assess.

John Watt

If I am following the discussion correctly, the argument is that it is not for members of the board or for social workers to identify whether an individual is, or might be, suffering from a mental illness; a psychiatrist should make that assessment. Am I following the discussion correctly?

Rona Mackay

I am putting the question to you. Do you think that that should happen?

John Watt

As I have said, experienced and seasoned professionals ought to be able to spot an issue and then follow it up. If you are not with me on that, the only solution that I can see is that every prisoner has a psychiatric assessment that goes into their dossier before it comes to the board.

Dr Brown

We are all at risk of experiencing mental illness. One in four people will experience it, and that applies within the prison setting, too. Mental health difficulties may or may not have been identified prior to someone coming into prison. Prison is not an easy experience, and many people develop different symptoms during their time in prison. There might not have been historical concerns; there might be more recent concerns.

In Scotland, we are very fortunate in that there are mental health teams in prisons. For the most part, people who experience mental illness are identified readily by the experienced staff in the prison and then directed to the mental health teams. There should be access to professionals—not just psychiatrists but trained mental health nurses, too. That information could be made available if it is required. That said, that information might not be part of the original dossier, so having access to a psychiatrist on the Parole Board would be of benefit in order to follow up on the information and to have access to it in a way that could inform.

The Convener

That is exceedingly helpful.

Fulton MacGregor

My questions are directed at James Maybee. Can you outline the role of social work in informing decisions about release on parole? Taking into account earlier questions, can you tell us about how mental health services are accessed and the role of mental health officers in that respect?

James Maybee

As far as parole is concerned, there is a clear process that includes a community-based element and a prison-based element. Every prison has a social work unit, and it produces a parole report that goes into the dossier to be considered by the Parole Board. A separate report is provided from the community-based element.

A process called throughcare assessment for release on licence—or TARL—has just been evaluated, and there has been a pilot to look at streamlining that process and bringing together the prison and the community-based parole reports into one assessment. There are good reasons for having one assessment rather than two separate ones—for example, it can bring together the best of both worlds. After all, prison-based social workers’ view of risk and risk management is sometimes different from that of the community, which simply reflects the different perspectives that people bring to the task.

Interim guidance has been issued and signed off by chief social work officers through Social Work Scotland in respect of how the current arrangements should work if there is any difference of opinion. In the very small number of cases where that happens, the default position is that the community gets the final say, given that it will be managing the risk when an individual gets back into the community. We therefore have a very clear process for submitting assessments and engaging with the parole process.

Fulton MacGregor

That was a good outline, but the previous question was about mental health. I think that colleagues around the table are concerned that mental health issues are perhaps not being considered in the risk assessment process. Can you tell us anything about social work risk assessments and the tools used, which you identified earlier? How do they specifically address mental health, and how are other agencies—mental health officers, for example—brought into that process?

James Maybee

I can absolutely tell you something about that. The issue of mental health would be considered in any social work assessment, from the original criminal justice social work report that goes before the court onward. Although a social worker might not be a mental health officer, they could have that qualification, which would mean that they would have an additional degree of knowledge and expertise compared with a normal social worker.

However, when a social worker has concerns about someone’s mental health, at whatever level, they will certainly seek to refer that individual to the specialist mental health services for an assessment. For example, even at the court report stage, it is not beyond the realms of possibility for a social worker to suggest to the court that it needs a further psychiatric report or psychological assessment in order to inform the sentencing decision.

Social workers are therefore very alive to the issue of mental health, and that process will continue during someone’s journey through the prison estate. If somebody is being considered for parole, the prison-based social worker and, indeed, the community social worker involved in the individual’s integrated case management will always consider the individual’s mental health. As Dr Brown said, we know that there is a high prevalence of mental health issues among those individuals. Social workers are not experts in the same way that psychiatrists or forensic psychologists are, but they will always seek to make referrals for further assessment and information to inform their decision making and will include that information in their report. I would be very surprised if a prisoner with a mental health problem got to a Parole Board hearing and that information had not been flagged up in some shape or form.

Fulton MacGregor

Would that surprise you because the risk assessment would have already identified that there had been a history of mental illness being diagnosed or that there was currently such a diagnosis?

James Maybee

Yes. The social worker would always look for any previous involvement with mental health services and would seek to put that information together. It is a critical part of the overall assessment.

Fulton MacGregor

That is helpful. What is the role of social work in monitoring parole conditions? What might be the areas of difficulty and where is there good practice?

James Maybee

Do you mean with regard to someone actually being in the community?

Fulton MacGregor

Yes.

James Maybee

Somebody who is subject to a statutory prison licence will be monitored and supervised in accordance with the national outcomes and standards and the associated guidelines. It is fair to say that the current throughcare guidance for criminal justice social work is very out of date; it was written in the late 1990s or early 2000s, and since then there have been significant developments in the way in which we do business. It is generally accepted that we need a more up-to-date set of throughcare guidance to follow.

However, the high-level national outcomes and standards set out very clear guidelines for how often an individual should be seen in relation to their risk. Certainly, the task of social workers is to ensure that prisoners are seen in accordance with those guidelines and are very strictly monitored.

Fulton MacGregor

I am happy with that, convener.

The Convener

That concludes our questioning, and I thank all the witnesses for attending and presenting their evidence in person to the committee.

I suspend the meeting briefly to allow the witnesses to leave.

12:10 Meeting suspended.  

12:10 On resuming—  

The Convener (Margaret Mitchell)

Welcome to the Justice Committee’s second meeting in 2019. There are no apologies.

Agenda item 1 is our final evidence session on the Management of Offenders (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome Humza Yousaf, Cabinet Secretary for Justice; Graham Robertson, bill team leader; Sandra Wallace, parole policy team leader; Stephen Jackson, solicitor; and Craig McGuffie, solicitor with the directorate for legal services.

I thank the cabinet secretary for his various submissions to the committee. I believe that he wishes to make a brief opening statement.

The Cabinet Secretary for Justice (Humza Yousaf)

I do. Thank you, convener.

Thank you for inviting me to the committee and for your flexibility in allowing me to give evidence this week rather than last.

The committee has heard from my predecessor on the Management of Offenders (Scotland) Bill. Since then, the committee has understandably requested an extension to stage 1 to allow it to consider two independent reports on the operation of home detention curfew, which were published on 25 October 2018. I would also like to take the opportunity to put on record my condolences to the family of Craig McClelland.

Following the publication of the independent reports, all 37 of their recommendations were accepted by the Scottish Government, the Scottish Prison Service and Police Scotland. Work has been on-going to take forward all the recommendations. Some of them may be taken forward by way of this bill and I am, of course, open to feedback from the committee on that process.

I will briefly restate the purposes and principles of the three parts of the bill. Part 1 is designed to provide a single overarching set of rules that govern the use of electronic monitoring and are applicable across the breadth of the justice system, be that pre-conviction, at the point of sentencing or on release from imprisonment. As such, the provisions of the bill are intended to be read alongside those relating to the underlying orders, which remain very much in force. Those provisions support the more extensive, consistent and strategic use of electronic monitoring that is envisioned by the report of the working group on electronic monitoring in Scotland.

Part 2 is about the basic disclosure of convictions when, for example, someone wants to gain general employment in a shop or an office, or when someone applies for home insurance. We want to reform the general disclosure system, as the evidence is clear that a system that involves too much disclosure can have a negative impact on people’s lives. We propose to reduce the period for disclosure for the majority of sentences, which will bring more people within the scope of the protections under the Rehabilitation of Offenders Act 1974. We also propose to increase the clarity and accessibility of the legislation, and improve the terminology that is used in it, to reduce any confusion about the purpose of disclosure. This legislation, coupled with cultural change, will amount to progressive reform that will unlock the massive potential of people with convictions and help to reduce reoffending.

Finally, part 3 changes the term of appointment and reappointment of Parole Board for Scotland members to bring it in line with other tribunals. The intention is to maintain the expertise of members and build on their experience. Part 3 also removes the statutory requirement for there to be a psychiatrist and a judicial member on the board, relying on the particular expertise of the wider membership to fill those gaps. The bill also reinforces the continued independence of the Parole Board and its decision making and allows the Scottish ministers to set out the board’s governance arrangements in secondary legislation.

As the committee may be aware, on 19 December 2018, the Government launched the consultation paper “Transforming Parole in Scotland” as part of our commitment to improving openness and transparency in the parole system. The consultation also seeks people’s views on how to strengthen the voices of victims and their families.

We are consulting on supervision, review and recall arrangements for people who are released on parole, and how to further enhance the independence of the Parole Board. The consultation covers the issues that are raised in the Michelle’s law proposal as they relate to parole. If issues that require legislative change are raised through that process, we will of course consider whether the bill can provide an appropriate vehicle to take those forward.

I am happy to take questions.

John Finnie (Highlands and Islands) (Green)

Someone being considered for transfer to the open estate in the Scottish Prison Service requires to be assessed by a multidisciplinary risk management team, while decisions on home detention curfew are made by a single individual. Is there any conflict in that respect?

Humza Yousaf

I understand the thread going through John Finnie’s question. Following the inspectorates’ reports—I reiterate that all the recommendations in them have been accepted—there will be a more robust risk management assessment process. Under the previous regime, other partners including criminal justice social work fed into that process, but the working group that will take forward the recommendations will look at the risk assessment process and consider whether it should be multidisciplinary, which other partners should be invited to give feedback and so on.

With regard to the hypothetical that John Finnie has highlighted, I point out that there is a difference between short-term and long-term prisoners, and for someone on a six-month sentence, who might serve only half of that and then go on to an HDC, it might not be appropriate to put together the kind of multidisciplinary team that would assess someone going into the open estate, given the resource and time that would be required. However, on John Finnie’s general point, the working group is looking at whether the risk assessment can be done better, can involve more partners and can be improved. It is certainly one of the recommendations that is being taken forward.

John Finnie

The 75 per cent drop in the use of home detention curfew suggests either that there was something wrong with the previous system or that the Scottish Prison Service is risk averse. It is a valuable tool and I, for one, would like it to be used as much as possible, but the current position suggests that there has been a knee-jerk reaction and some form of risk aversion.

Humza Yousaf

John Finnie is correct. We live in a world where risk aversion is almost the natural instinct of public or private organisations that are subject to a lot of media scrutiny. I agree with the member that HDC is a very useful reintegration tool, and I hope that this risk-averse approach is only temporary.

The decline has been quite dramatic; in fact, I will be answering a question later in the Parliament from Liam McArthur on the increase in our prison population. Undoubtedly, the 75 per cent reduction in the use of HDC has, among other factors, contributed to prison numbers, but my hope—and belief—is that this is only a short-term situation.

As for the previous regime, there is no doubt that, when two inspectorates come forward with reports making 37 recommendations, there are clearly improvements to be made, and it is important that we learn those lessons. However, it is also important to point out that we as a Parliament have collectively agreed on much about HDC and have approved various sets of guidance and, indeed, the legislation itself. I therefore hope that, for whatever changes we can make, we can take the majority if not all the Parliament with us.

John Finnie

I know that colleagues have a number of questions that they want to ask, but I have a brief, final question about the role of G4S, which has produced the statistics for our briefings. Is it helpful for a commercial organisation to be involved in a process that also involves statutory bodies such as Police Scotland, criminal justice social work and the Scottish Prison Service? Should the entire regime not rest within the public sector, as I feel it should?

Humza Yousaf

That did not come up as a major issue of concern in the inspectorates’ reports. I visited the G4S control centre to look at the regime in a bit more detail, and I was exceptionally pleased with the professionalism of the organisation and the people working in the centre and the diligence with which they did their jobs. I would not say at this stage that the commercial operation gives me huge concern.

Liam McArthur (Orkney Islands) (LD)

Good morning, cabinet secretary. In response to John Finnie’s questions, you suggested that the dramatic reduction in the use of HDC was a reflection of risk aversion in the Scottish Prison Service. However, to some extent, the new presumptions against HDC are less about risk aversion and more about the more limited range of situations in which it might be presumed to be applicable. Is there any likelihood of that changing while those restrictions on the use of HDC are applied?

Humza Yousaf

That is a very fair point. We would have to drill down further into the 75 per cent figure. However, I think that all of us who are in the political field or otherwise under media scrutiny have been in a position, individually or through our political parties or other institutions, in which the level of scrutiny has made us almost automatically risk averse. We all recognise that. Notwithstanding that, the point that Liam McArthur makes is correct. We have limited the scope for the use of HDC. It is important to say that there is not a ban on the use of HDC; there is a presumption against it for those who have an index offence for violence, for carrying an offensive weapon or a bladed article, or for having links to serious organised crime.

That does not mean that the number of HDCs cannot increase in the future. We may not see them reach the level that we saw under the previous regime before the presumptions were brought into place, but there is scope for HDC to increase with the legislation that is coming forward. If I take not just HDC but electronic monitoring in the round, the Government’s stated goal is to continue the expansion of electronic monitoring. In fact, this committee has produced reports to that effect concerning bail supervision and other parts of the criminal justice system.

I take Liam McArthur’s point and we will look at it carefully.

Liam McArthur

That is helpful. However, I am struggling to understand what might encourage those numbers to go back up, albeit at an appropriate level. We are struggling to understand whether the previous level was exorbitantly high or the current level is unsustainably low when it comes to managing the integration of prisoners back into the community. Without the opportunity to manage that process in the way that HDC has enabled up until now, the presumption seems not only to have an impact on the overall size of the prison population but to increase the risk to communities from the return of prisoners back into the community.

Humza Yousaf

Again, those are both fair points, which I will try to address. I will drill down into the figures in more detail, but my understanding is that the 75 per cent reduction is not necessarily all down to the presumption. I believe that there is an element of risk aversion. The governors are working on further guidance and we may see the numbers creep back up. However, Liam McArthur is right that, now that we have accepted the inspectorates’ recommendations and put a presumption in place, it is difficult to see the numbers rising dramatically to the point that they were at previously. I accept that point fully. Therefore, HDC will be part of how we collectively agree to lower prison numbers, but we will have to look at other options that we will address later in parliamentary proceedings.

I also fully agree with Liam McArthur’s second point. There have been a number of pieces of research on HDC, including a piece from the Ministry of Justice that I found quite helpful, indicating that HDC helps with the integration back into communities. If there are fewer people going through HDC, they are less involved in the reintegration process. Does that cause harm? There is absolutely the potential for that. That is why I have asked my justice analytical services to give me more qualitative research into the positive, or indeed, negative effects of the home detention curfew. That is extremely important.

When I was at the G4S control centre, I was told stories about people who found that being on home detention curfew after a period of imprisonment allowed them to reconnect with their families and access support voluntarily—having been guided to that support by others—which really helped them in their desire not to reoffend. There absolutely is merit in what you said, and the justice system must seriously consider the matter.

11:45  

Liam McArthur

The committee took evidence from the Risk Management Authority, which told us:

“The recent introduction of the presumptions against HDC has inadvertently or on purpose ... raised the question of the purpose of HDC, its intention and what it is in place to achieve.”—[Official Report, Justice Committee, 18 December 2018; c 23.]

It seems from what you are saying that the Scottish Government’s intention is not to move away from HDC as a means of smoothing the transition back into the community. Is that a fair reflection of the Government’s position?

Humza Yousaf

Because of the research evidence that exists, we think that HDC absolutely can be a helpful tool for reintegration into the community. I want to bolster the evidence with additional qualitative research, which I will be happy to provide to the committee once it has been done.

I still believe that HDC can be a helpful tool; what I am saying is that, when we consider the wider picture of the prison population, the desire to reduce recidivism and alternatives to custody, it is just one piece of the puzzle.

Liam McArthur

What you are saying chimes with evidence that we heard from previous witnesses about the need for presumptions and changes in approach to be reviewed. Various timeframes were offered up in that regard but there absolutely was a feeling that the matter needs to be kept under review, so that the implications of the process of reintroducing ex-prisoners into the community are assessed on a qualitative basis. At this stage, are you able to commit to a timeframe for coming back to the committee and the Parliament with that assessment?

Humza Yousaf

I have read carefully the evidence that the committee received, particularly in your two most recent evidence sessions on the issue. I noticed that the proposed timeframe ranged from three to five years. I will consider the matter with great interest. I cannot give a commitment right now; we will wait for the committee’s stage 1 report and reflect on it.

I reflect on HDC quite a lot. When I look at the history of HDC, it is clear that the approach has evolved in its structure and governance. Most recently, of course, the reports from Her Majesty’s inspectorate of constabulary in Scotland and HM inspectorate of prisons for Scotland made 37 recommendations, which we accept.

The Government must always be open-minded about potential improvements and adjustments to HDC, and we will continue to be so. However, we must let the current regime bed in for a period before we make fundamental changes.

Liam Kerr (North East Scotland) (Con)

Some people are concerned that there is a danger that public protection will be compromised by the use of HDC to promote rehabilitation and reduce the prison population. Will you guide the committee on the priority that public protection is given over other considerations when HDC is being considered? How is the balance struck?

Humza Yousaf

I will answer your question in a second, but first let me encourage you not to think that there is necessarily a choice between one or the other—that is, between public protection and reducing an offender’s reoffending behaviour—because the two are undoubtedly linked. If we can reduce an individual’s reoffending, that is clearly of great benefit to victims or potential victims. That is an important distinction to make.

On your substantial point, public protection is absolutely key—it has to be the key consideration. There are a number of considerations, including public protection, preventing reoffending and securing successful reintegration. It is clear from the reports that the inspectorates think that—I paraphrase—not enough weight is put on the public protection element, which, as I have acknowledged, is a key consideration. We have therefore accepted the 37 recommendations that are for us, the SPS and Police Scotland.

There is more that we can do to understand how best to weigh the elements. The Risk Management Authority is now working with the SPS to develop a risk assessment tool for short-term prisoners. However, ultimately, even the best risk assessment tools in the world can take us only so far in protecting the public from how an individual might behave and what they might be capable of doing. Once that work has been done to develop the risk assessment tool to weigh the elements, it would be helpful if we shared that with the committee and heard your thoughts.

Liam Kerr

Do you have any indication on when the risk assessment tool might be ready?

Humza Yousaf

The RMA is working on that now. My direction to all the partners involved has been that it should be done right rather than rushed. I have not pushed them for a timescale, but they have my direction and they understand from the inspectorates’ thorough reports that, of the key assessments that have to be made, protecting the public is right at the top.

I understand that the wait for that tool is an important issue and I am sorry that I do not have a definitive timescale, but my direction has been to get it right rather than to rush it.

The Convener

On that specific point, before we move on, can you give any indication of whether the committee will see the risk assessment tool before we complete stage 3 of the bill? That is an important question.

Humza Yousaf

I can absolutely see the logic for why that should be done, so I will take that back to our partners and press them on it. I can see the sensibleness of doing that, so, if we can, we will aim to get it done before stage 3.

The Convener

That is helpful.

Liam Kerr

This is a slight change of topic. What was the thinking behind tasking prison governors with taking decisions on HDC, rather than giving the role to a multidisciplinary risk management team, as happens elsewhere in the system? On reflection, does that remain your preferred course of action?

Humza Yousaf

That goes back somewhat to the question that John Finnie asked at the beginning of the meeting.

It is important that others feed into the decision that is made. Criminal justice social work, among others, currently do that. The on-going work of the working group is to explore and examine who else could make a useful contribution to the decision making.

However, we have to be realistic. For an individual with a particularly short sentence or perhaps for whom it is the first offence—although that is unlikely—there might not be much background. In certain cases, there might be only a limited amount that an agency could feed in and it might be costly to bring together a multidisciplinary team that would not add value. All that has to be weighed up.

Prison governors are highly trained and have a great amount of expertise in what they do. I have confidence in their being tasked to make those decisions. However, they do not make them in isolation; other people feed into that process.

Shona Robison (Dundee City East) (SNP)

I want to take the discussion on the assessment and management of risk a little bit further. As you pointed out, you can never eliminate risk entirely. You mentioned the working group. Is that the same group that is working on the assessment tool, or are there two different groups?

Humza Yousaf

The HDC guidance and governance working group is considering how additional information is best weighted in the risk assessments. The SPS and the Risk Management Authority are working together to develop a formal risk assessment tool for prisoners with a short-term sentence.

Shona Robison

The SPS and the RMA are presumably drawing on the experience of the working group. I guess that those two pieces of work are interlinked in terms of the guidance.

Humza Yousaf

Yes, indeed.

Shona Robison

It would be helpful to share those pieces of work with the committee, as that will allow us to examine what the process will look like in practice and understand what it will mean for those who use the guidance to judge whether the level of risk is acceptable.

I wonder whether you can say a little bit about the working group. Does it cover a variety of interests? For example, does it reflect the views of the public? Are they able to have a voice in those deliberations? I guess that I am thinking of those who represent victims. How will they be able to influence the group’s work?

Humza Yousaf

My understanding is that organisations that represent victims have been feeding in their views. A lot of work had been carried out on the bill by previous working groups before the inspectorates issued their reports, and they included Scottish Women’s Aid, which obviously has an interest in aspects of this issue. If you do not mind, I will hand over to Graham Robertson to give you more detail, as he is involved in various elements of the working group.

Shona Robison

That is fine.

Graham Robertson (Scottish Government)

The working group involves a number of justice partners, including the police, the Prison Service, criminal justice social work and the Risk Management Authority. Initially the group will be tighter, given that some of the discussions will look at intelligence information and so on, but our intention is to widen it in its latter stages to include certainly the third sector and academics who have expressed an interest in the matter.

Shona Robison

With regard to the guidance that might emerge from the working group, you have identified two elements: the understandable presumption against the use of HDC in certain cases and a recognition of the role that HDC can play in reintegrating people into society. With regard to a person’s history, how much discretion would there be in the case of, say, someone who had committed an index offence of violence 20 years ago when they were a young person and in a different place in their life? I presume that a presumption is not absolute, so would the guidance provide scope to look at, for example, how long ago the index offence occurred? Would those be areas that the working group would look at, or are we talking about something absolute if, say, the index offence had a violent component to it?

Humza Yousaf

That is an important question, and I hope that I can give you some clarification and reassurance about it. I will also ask my officials to elaborate.

We talk about looking at the index offence, which might relate to violence, carrying an offensive weapon or bladed article, or serious organised crime—if such links can be established—rather than past offences. That said, one of the measures that we have put in place as a result of the inspectorates’ reports is to feed police intelligence into decisions on home detention curfew, and that intelligence could be about links to serious organised crime or any history that the police might have with regard to individuals. However, we have to be careful in these areas.

I do not know whether my officials have anything to add.

Graham Robertson

As has been said, these are difficult and complex decisions, and a lot of work is going on to ensure that richer information is available. The inspectorates recommended that longer-term pieces of work look at what is being done to correctly weigh the various issues, and the working group is taking forward that work.

Shona Robison

Can you also commit to keeping the committee informed of the outcomes of the working group’s work?

Graham Robertson

Yes. For sure.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Picking up on Shona Robison’s point about the working group, I note that in its submission Scottish Women’s Aid calls on criminal justice social work and Scottish Prison Service personnel to

“receive training on the dynamics of domestic abuse”,

particularly in light of the Domestic Abuse (Scotland) Act 2018. Is HDC problematic in domestic abuse cases, where it might be more difficult to monitor—and, I suppose, see—reoffending and controlling behaviours?

12:00  

Humza Yousaf

Our engagement with a number of organisations, in particular Scottish Women’s Aid, is very important. When we look at the bill in its entirety and at potentially extending electronic monitoring—for example, using global positioning system technology—there is a completely understandable concern from organisations such as Scottish Women’s Aid. Their concern is that being able to tell where a person is on Google maps does not mean that that person is not contacting the victim by telephone, social media or some other means and that—to paraphrase—they would have serious reservations and would need to see safeguards in place. On home detention curfew and the wider electronic monitoring discussion, partners such as Scottish Women’s Aid are very important.

To some extent, I leave training to the SPS. They are well aware of the training needs of their staff. I could not tell you off the top of my head whether staff receive specific training. The Scottish Government will fund training for police officers and others on the new legislation. I would have to look into that specific aspect, but the committee has raised a good point that we will take away and reflect on.

Jenny Gilruth

I have a brief final question. The written submission from Engender asks for further exploration of

“the impact of EM on women”,

which you alluded to. It cites evidence of electronic monitoring bringing with it

“a number of problems which negatively impact on mother-child relations”

and a finding from the 2015 SPS prisoner survey that 74 per cent of female prisoners had suffered from “anxiety and depression”.

I do not know whether you can go into the detail of the working group’s remit, but will it look specifically at female offenders, in terms of monitoring risk?

Humza Yousaf

It is hugely important that the working group does that, and we will feed back the points that Jenny Gilruth has put on the record. We know from all the research—and there has been some good research on the female offender population in Scotland—that there are different complexities when it comes to females in the prison estate.

We are taking forward a radically different way of doing things through community custody units, two of which, in Dundee and Glasgow, have been granted permission to establish. We are doing a lot of good things. There are some additional nuances in this agenda for the female offender population, as opposed to the male offender population. That should be part of the consideration, and, if it is not, I will ensure that it becomes so.

Daniel Johnson (Edinburgh Southern) (Lab)

Reflecting on where we have got to, I have said to colleagues that, with hindsight and following the tragic case of Craig McClelland, we overlooked a couple of key matters when we first examined the bill. We looked at how electronic monitoring might be applied under the bill’s provisions, and what would happen if a person breached a condition. We did not ask how the decisions are arrived at currently and what happens right now when people breach conditions. I ask the cabinet secretary to reflect on whether, in introducing the bill, perhaps there was insufficient examination of how the assessment is made and how electronic monitoring is monitored under the existing legislation.

Humza Yousaf

I appreciate the member’s frank insight and candour in relation to his own and the committee’s perspective. That is helpful.

From my own perspective, the committee will know that I was in a different ministerial position when the bill made progress last year, so it is difficult for me to say what the considerations of my predecessor or the bill team were. It would be fair to say that there is no doubt that a tragedy such as we witnessed in the Craig McClelland case sharply focuses all our minds, including Government minds. Collectively, the inspectorates’ reports with their 37 recommendations mean that the system could be improved from the previous regime, and it will be improved—clearly, there was room for improvement.

Whether risk management and assessment were considered carefully enough before that tragic incident is difficult for me to say, because I was not in my current position then. However, I can give the member assurances that we are better for the inspectorates’ reports. There was wisdom in the committee waiting until those reports were completed before it re-examined the evidence from stage 1. The regime will be better and the public will be safer for those recommendations.

Daniel Johnson

The cabinet secretary is right in his emphasis on safety. A number of committee members have asked about the risk management regime, which is a central point. Enabling prisoners to have a degree of liberty requires a robust risk management regime. Does the cabinet secretary think the bill should give clarity about the risk management regime, certainly in relation to who is responsible for arriving at the assessment? Given the comments that HMIPS and HMICS make in their reports, the more important question is: who is responsible for monitoring the decision once it has been made?

Humza Yousaf

I have come before this committee a few times to look at legislation, and I have always been wary of putting too much on the face of a bill. It is difficult to change primary legislation—that is a particularly rigid and inflexible process—whereas doing things through secondary legislation, or indeed through guidance, can be more flexible. I go back to Liam McArthur’s question on the need to constantly review HDC and keep an open mind as it evolves over the years. If we accept, as I do, that we have to do those things, putting a risk management assessment procedure or tool in primary legislation might create a degree of inflexibility for the future.

Daniel Johnson

I was not suggesting that. In my view, it is critical that legislation identifies who is responsible and what they are responsible for.

In its report, HMIPS states:

“Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of ‘robust’.”

HMIPS also observes:

“Given that additional HDC licence conditions were not monitored, it is doubtful that they serve any purpose.”

However, when we heard from Colin McConnell, he was adamant that he was upholding the guidelines and policy as they stood.

We have a report that says that conditions were not being monitored, but the Prison Service says that it was doing everything that it should. If the bill does not identify anything new in terms of what is to be assessed, who is to assess it and, most important, who is to monitor any decisions, my concern is that the bill will not be capable of satisfying those key issues, which are identified in both reports.

I agree that the tools should not be on the face of the bill, but the high-level principles of what should be done and who should be responsible for that surely should be.

Humza Yousaf

I apologise—I misunderstood the member’s original question. In terms of who should be responsible, I will look carefully, as I always do, at the committee’s stage 1 report. I will be as open-minded as I can be to the committee’s suggestions, especially on this issue. We may have differences in terms of nuances but ultimately we want to get to the same place. Most, if not all, of us believe that HDC can be an important tool in the criminal justice system, but appropriate safeguards for public confidence and safety have to be there. Therefore, if there are sensible suggestions on the issue, I will look at them.

With regard to the potential for the bill to say who should make the decision, I go back to my previous answer. As I am sure members of the committee do, we always have to keep it at the front of our minds that, if we put such a provision in a bill, changing it can be incredibly difficult. The process and regime have already gone through quite a bit of change in their formative years. We have to be careful that we do not box ourselves into a corner. Notwithstanding all that, I will keep an open mind on any suggestions that come forward.

Daniel Johnson

I guess that the committee has an issue, in that we do not seem to have any key proposals in front of us to address the central issues that the reports identify, which are monitoring of conditions and information sharing. How can we assess the bill without any additional proposals to address those key points?

Humza Yousaf

Quite a lot of work has been done on information sharing. In fact, we did not have to wait for the inspectorates’ reports for there to be an improvement in information sharing between, for example, the SPS and Police Scotland on potential breaches and people being unlawfully at large. There was quite a dramatic reduction in the number of people being unlawfully at large once some of the information protocols were improved. I could perhaps write to the committee on information sharing.

I go back to the convener’s point on whether the risk assessment work can be concluded before stage 3. I gave an undertaking to speak to our partners about whether that will be possible, because I see the logic in the sensible suggestion that it be concluded before then. I do not know whether that will be possible, but I will certainly push them hard on it.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

You will know from Daniel Johnson’s line of questioning that the committee heard evidence on breach of an HDC not being a specific offence. What is the Scottish Government’s thinking on making breaches of HDCs an offence and increasing police powers of arrest when they suspect that somebody is in breach?

Humza Yousaf

If the member is talking about proposals in relation to being unlawfully at large, one of the recommendations in the inspectorates’ reports was about the Government giving that consideration, which would reflect the position in England and Wales. In the tragic case of Craig McClelland, there was some dubiety around whether there were appropriate powers to enter a premises without being unlawfully at large being an offence. There is varying legal thought on that. We are reflecting on whether, at stage 2, to remove the dubiety that might exist by making being unlawfully at large an offence, thereby giving officers the power to enter premises. As I said in my ministerial statement, we will consider that in considering the two inspectorate reports.

I note from Police Scotland’s evidence to the committee that it has made calls for the Government to explore other areas such as, potentially, giving the police additional powers in the case of a suspected, as opposed to a confirmed, breach.

We will look at the evidence very carefully. I have some concerns that I have to discuss with the Government legal team, Police Scotland and others, but we will certainly look at all the suggestions and reflect on them.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

What might be the wider implications of the two reports? Will they have a bearing on the release of prisoners who are due for parole or any accused who are on bail? Will the process for those who are due to come up for parole be altered?

12:15  

Humza Yousaf

As the member knows, the processes are very different. As I said in my opening statement, there is currently a consultation around parole. This committee has also made many suggestions around bail, which we will also look at.

There may be cross-cutting lessons to learn, particularly around risk management and potentially—some members have alluded to this—around multidisciplinary approaches. However, I looked at the evidence from the Parole Board and saw that its chairman, John Watt—who is here—was quite direct in saying that, from his perspective, parole is a separate process, which is currently going through a consultation, and that what is being learned from HDC will not necessarily be applicable to it. There may be some limited overlap, but we are always looking at issues such as bail, HDC and electronic monitoring and parole, which is being consulted on at the moment.

Rona Mackay

So there should be no significant bearing in that respect, as you see it.

Humza Yousaf

I do not currently see it having a major bearing. There could be some overlap, but I do not think that the impact would be major, as John Watt of the Parole Board has also said. There is a separate consultation on parole, which is important. We should always ensure that we are constantly reviewing the processes that we have in place, but my assessment is that there will be no major impact.

Rona Mackay

I know that you mentioned it earlier on, but can you clarify the effect that the two reports might have on the Government’s plans for expanding electronic monitoring?

Humza Yousaf

That is an important question, which goes back to the earlier questions from John Finnie and Liam McArthur around whether there is a level of risk aversion and my, I hope, frank answer that there will, understandably, be an element of that in high-profile cases.

As Cabinet Secretary for Justice, I absolutely want us to ensure that we have the appropriate safeguards, learn the appropriate lessons and accept the appropriate recommendations. However, we as a Government—and I as Cabinet Secretary for Justice—still see electronic monitoring as a really useful and important tool in using the various orders for which it is used and, therefore, its further use and expansion is still absolutely the Government’s intention.

Rona Mackay

I suppose that the re-evaluation and scrutiny of risk assessment will affect that as well, in the sense that it will allow the Government to move forward with confidence.

Humza Yousaf

Yes, for sure. Safeguards are really important. Tragedies such as the one that we witnessed involving Craig McClelland shake public confidence a lot. It is important that we do everything that we can to restore that public confidence. We are in a good place with the inspectorate reports, and the work that is being done by the various working groups and between partners will only help to strengthen that position and boost public confidence on that measure.

The Convener

Before we move back to the new offence, will the cabinet secretary confirm whether there will be access to specialist psychiatric expertise on the Parole Board?

I am not sure whether the cabinet secretary has looked at it, but the Royal College of Psychiatrists in Scotland has made a powerful submission on the expertise that its members provide in relation to prison healthcare, not just in psychiatric hospitals but in relation to transfer and a range of other areas. I will not go into those now, but it was a compelling submission.

Although it might not be necessary for there to be judicial representation on the Parole Board all the time, it should be available as and when necessary. Will you consider whether the same applies to specialist psychiatric representation?

Humza Yousaf

I agree that the evidence from the Royal College of Psychiatrists in Scotland was compelling and strong. However, there are a couple of things to say about the potential removal of the statutory requirement for a psychiatrist, the evidence on which from the Parole Board also made a lot of sense and had a lot of logic to it. For example, it made the point, first, that it considers 2,500 cases and that one psychiatrist cannot possibly look at every single one of those cases; and, secondly, that a number of Parole Board members have experience in the field of psychiatry and so the statutory requirement is not needed. From my recollection of the evidence session, I think that it was you, convener, who pressed the Parole Board on why, although that might be the case, we would not have a statutory provision rather than leave it to chance.

I can see the argument on both sides. I will await the committee’s report on that particular provision, and I have a very open mind on looking at it again.

The Convener

That is helpful.

Daniel Johnson

I want to follow up on Fulton MacGregor’s question about the new offence. I support the new offence in broad terms and, in particular, giving the police the ability to enter premises when a breach has occurred. However, the Law Society of Scotland, in its detailed submission to the committee, which contains its concerns about areas where it feels that there may be shortcomings, states that

“creating an offence will not address”

the issues around information sharing

“other than with a practical effect where when caught they then fall to be sentenced to a further period of custody in addition to serving the remainder of their outstanding sentence.”

How is the Government going to address the concerns that the Law Society of Scotland has set out?

Humza Yousaf

The committee will forgive me—I have not seen the submission; I undertake to look at it after this committee session. I do not know whether it has been sent on to me, but I will certainly get a hold of it and look at it in detail.

As I said to Fulton MacGregor, our aim is to create the offence of being unlawfully at large to remove the legal dubiety that exists. In essence, having that would mirror the situation south of the border.

The Law Society of Scotland’s concerns as Daniel Johnson described them would, I suppose, hold if you look at the situation completely in isolation. However, there are 37 recommendations, of which consideration of making an offence of being unlawfully at large is simply one.

As we have discussed for some time, information sharing is a critical and key part of the recommendations. I would have to look at the Law Society of Scotland’s submission in detail to be able to comment more fully, but I hope that what I have said addresses some of its concerns.

Fulton MacGregor

Back on the convener’s line of questioning about having psychiatrists on the Parole Board, my recollection of that particular evidence session is that there was a slight feeling that psychiatric representation on the Parole Board would represent mental health as a whole. Will the cabinet secretary comment on what the role of mental health officers and other mental health professionals might be in informing decisions if there is no need for a psychiatrist on a particular panel?

Humza Yousaf

That discussion is topical in relation to both the bill and the consultation on parole.

In my interactions with the Parole Board—in particular with John Watt but also with other members—it is clear that the information that comes to Parole Board members is of real and paramount importance. The information that is provided to them in the dossier will largely, if not exclusively, help them to determine whether a person is released on parole or not. Therefore, it is utterly critical that they get the most comprehensive information possible.

As the Parole Board is mostly looking at people on longer sentences, there is time to gather that information, which would include information about the individual’s mental health. The consultation will focus our minds on how we can provide better information to the Parole Board and what other things it needs to consider on which it might not be getting information that is as full as it could be at the moment.

The issue is very topical and is very much a part of the current considerations.

The Convener

You said that you had not looked at the Law Society’s submission, but it is a powerful submission that raises many technical points on which the committee has not taken evidence and of which we were not aware. I am thinking, in particular, of effective notification of a breach, the recall notice procedure, the system for prioritising different categories of cases and the monitoring of non-compliance with additional conditions to address specific concerns about identified risk. All those issues were raised when the committee went to visit the Wise Group, which concluded that although it was totally supportive of the extension of electronic monitoring, without adequate resourcing for the use of new technology such as the global positioning system, it was more or less doomed to fail. Can you reassure the Wise Group on that?

Humza Yousaf

I agree with the broad thrust of that; the resourcing in the financial memorandum and in the budget will be hugely important. That goes back to a wider point that we will discuss later today, in the chamber, when a topical question on prison numbers will be asked.

The Wise Group does phenomenal work when it comes to rehabilitating offenders and reducing reoffending, and we must have a more consistent approach, across the country, to reducing reoffending and to community payback orders, and that will require funding. We will continue to invest in that.

The convener makes a valid point. Our plans for a presumption against sentences of less than 12 months will be discussed by Parliament, but if the proposal is agreed to—I am hopeful that it will be—we will have to ensure that funding is available to take forward the necessary initiatives. We have already budgeted for that, but we will have to make sure that local authorities and the other organisations involved are adequately resourced for future years.

The Convener

I want to follow up on that before I bring in John Finnie. If there is satisfaction that public safety is not an issue, the bill will take us on the path to better rehabilitation—it will help to ensure that those prisoners who are not subject to early release and monitoring have more access to rehabilitation. When we first took evidence, we were told that there were many prisoners on remand who should not be on remand. The use of electronic monitoring would seem to be the most sensible option for such people; it would be less high risk than its use for those who have already been convicted, who present a greater risk. Has an opportunity been lost, because the bill does not cover remand?

Humza Yousaf

I would not say that an opportunity has been lost. I read the committee’s report on remand and listened carefully to the subsequent debate and discussion. Different considerations are needed for the use of electronic monitoring in different circumstances. With HDC, for example, the protection of the public is the primary concern. With bail supervision, the primary concern is the probability of the person not appearing—that is the risk that would have to be weighed up.

The considerations are different for different applications of electronic monitoring, depending on the type of order. However, I can give you an assurance that, as we continue to consider the issues around remand, we will be very much focused on a number of the recommendations that the Justice Committee has made.

12:30  

John Finnie

My question might be more of a point of clarification. It relates to your comments about the most recent evidence from the Law Society and the fact that you have not seen it. You said that you would look at it. Is there a possibility that you could respond to it within a timescale that would mean that we could consider your response as part of our work on our stage 1 report, which we will publish on our website? It would be good to round that bit off.

The Convener

That would be especially useful, given that we have not taken evidence on it.

Humza Yousaf

I thank John Finnie for giving me more bedtime reading to add to the accumulation of papers that I go through every night.

From everything that members are saying, I can see that it is an important briefing, so I do not see why I could not look at it soon and try to ensure that there is a quick turnaround on the response. I am not sure of the timetable for the production of your stage 1 report, but I will check that and try to get my response to you as quickly as I can.

The Convener

The clerks can send you the briefing, and I think that there is liaison with your officials on the stage 1 timetable.

Daniel Johnson

I thank the convener for raising our inquiry into remand, because there are some relevant points to be made in that regard. One concerns recording the reasons why bail is refused. There was some pushback when we asked whether it would be useful. However, we have taken evidence from Social Work Scotland, among others, about criminal justice social workers finding it useful to have the assessments that courts have made. From the point of view of public safety, if a court has decided that somebody should not be given bail for public safety reasons, it stands to reason that that is a useful bit of information for people who are conducting a risk assessment in relation to a home detention curfew to have.

For those reasons, might it be useful for the assessment that is made by the court regarding a refusal of bail to form part of a risk assessment for electronic monitoring and HDC?

Humza Yousaf

I can assure the member that I will consider the issue again. There can be different reasons for bail being refused, as he knows—it could be for public safety reasons or it could be because of previous non-appearance. Perhaps it might be useful if that information were shared, even to limited partners. I can see the thread of the member’s logic. I am happy to consider the issue again.

The Convener

I would like to ask about one final niche point, which came up when we were talking to the Wise Group. We heard that, often, when the police make inquiries when they are trying to follow up on a breach and, perhaps, when someone is in hospital, they are told that it is not possible to provide them with information because of data protection legislation. Obviously, there is a misunderstanding somewhere about data protection issues. Will you take that issue on board?

Humza Yousaf

I will certainly consider it. It has not been raised directly with me and I do not think that I saw it being raised when I read your evidence sessions in the Official Report. I hold the Wise Group in the highest of esteem, knowing its work for a number of years. If it suggests that that is an issue that it has come across, I have no reason to doubt that, so I would be happy to look into the issue and to make direct contact with the Wise Group.

Like many around this table, I have often been bewildered at how, sometimes, the most basic information is not shared, even though sharing it could make a massive difference to the processes that we are engaged in. If we can nip the problem in the bud, I would be happy to do so.

The Convener

The clerks can send you the evidence that we took, and I think that, when we took evidence from the police, they confirmed to us that there was an issue there. We are happy to supply that information.

That concludes our evidence session. I thank the cabinet secretary and his officials for attending. We will now move into private session. At our next meeting, on 22 January 2019, we will seek to finalise two stage 1 reports.

12:34 Meeting continued in private until 12:45.