Jenny Marra MSP - Speech to Parliament on the Criminal Cases (Punishment and Review) (Scotland) Bill: Stage 1

19 April 2012

Alongside other committee members who are present, I had the opportunity to scrutinise the bill closely as it passed through the Justice Committee.

I want to take some time to reflect on not just the principles of the bill, but its substance.

A great range of views have been expressed on what is a complex bill, as the Justice Committee convener has set out.

It is important that those views are aired in the chamber from the outset.

The most important thing in the scrutiny process is that we take the time to get the bill right, which means right for the victims of crime, for the courts and their procedures and for those who are sentenced in our courts.

Our justice system is built on the foundations of justice, compassion and integrity, which are the benchmarks against which we as lawmakers should measure any bill that comes before the Parliament.

On justice, does the bill get it right for the victims of crime?

On compassion, will the bill ensure that justice is proportionate?

On integrity, will the bill work effectively in our justice system?

In analysing the reasons behind the bill, we find that its principles go hand in hand with those that underpin our system.

Part 1 seeks to rectify an anomaly in the law that has led to a method of sentencing that has been seen to jeopardise the principles of integrity and justice.

As we have heard, through the case of Petch and Foye, sentencing in non-mandatory life sentences, including orders for lifelong restriction, have been subject to interpretation that has resulted in sentences being reduced to a point at which offenders will be considered by the Parole Board for Scotland earlier than they might otherwise have been.

As a result, there is an element of doubt and confusion, not only among victims and the wider public, but among the legal profession, as the convener pointed out.

Put simply, the bill seeks to address the anomaly by reinstating to judges discretion to hand down sentences that are deemed appropriate in each case.

In doing so, the bill seeks to restore integrity in the system as well as a sense of fairness and confidence in the eyes of victims and their families that offenders are being sentenced correctly for the crimes that they commit.

Introducing legislation that ensures that courts can sentence dangerous and violent offenders appropriately and in compliance with human rights can only be a good thing.

However, we can act on that principle only if the bill that is drafted to rectify the problem is clear, coherent and effective.

As the convener explained, the evidence sessions in the Justice Committee on part 1 of the bill were mired in uncertainty among committee members and witnesses.

Most important, there is no consensus that the bill will build confidence in our justice system.

There is still an opinion that people who come to the court to be sentenced as well as victims and their families are still confused by the sentencing rules in this country, and there is further confusion not just among committee members, but among qualified and experienced legal professionals.

I will give just one example. Back in January, when the committee first took evidence on the bill, James Wolffe QC stated:

“The approach that is taken in the amendments to existing legislation that are in the bill is to take an already complex piece of legislation and make it even more complex.”

He went on to say:

“sentencing judges are expected to explain sentences in a way that will be intelligible not only to the accused who is being punished and sentenced, but to the victims of the crime, the public at large and, ultimately, the appeal court. It is open to question, at least, whether provisions of such complexity will be helpful to sentencing judges in the task that they must carry out”.—[Official Report, Justice Committee, 31 January 2012; c 864-5.]

I share the concerns of Mr Wolffe and others who have given evidence on the bill and who have noted the wider implications for victims, the public and the appeal court, making a complex process even more so.

At this stage of the parliamentary process on the bill, I urge the cabinet secretary to take evidence from other European countries on how they manage to integrate the ECHR compliance in this form of sentence. Perhaps Scotland can learn lessons from other jurisdictions where there is more clarity.

There are similar concerns about part 2.

While noting the good intention behind the bill, contributors to the Justice Committee’s evidence sessions have aired very different opinions on how effective part 2 will be in addressing the issues that it seeks to rectify.

Len Murray from the Justice for Megrahi group described the bill as

“a sledgehammer to crack a fairly small walnut.”—[Official Report, Justice Committee, 7 February 2012; c 900.]

That appears to have been substantiated by the publication in a well-known Sunday newspaper of the statement of reasons a couple of weeks ago.

Although the convener of the Justice Committee and indeed the First Minister himself appeared on television to welcome its publication, questions were undoubtedly raised about the competence and necessity of part 2.

It is integral to public confidence that the Government should produce legislation that is necessary and effective.

Although out of the Scottish Government’s hands, that process was undermined by a Sunday newspaper’s publication of the statement of reasons.

John Finnie (
Highlands and Islands) (SNP): Does the member accept that part 2 of the bill has a wider application than just Mr al-Megrahi’s case?

Jenny Marra: John Finnie may, like me, hope that part 2 will have a wider implication in future, although it is difficult to predict when that might be.

However, we will support the Government’s motion because we believe in the principles of the bill and that part 2 is necessary for transparency.

In committee, we heard the assistant commissioner from the ICO assert that data protection was no impediment to the statement’s release and there was correspondence from the justice minister, Ken Clarke, who asserted similarly, despite Mr MacAskill’s insistence to the contrary.

Of course, now superseded by the publication of the statement of reasons in the Sunday newspaper, this Government bill and the parliamentary process seem out of step with the public thirst for clarity and transparency on the Megrahi case, which is an important case for the Scottish judicial system.

Part of the problem with part 2 of the bill lies in the scope of the consultation that the Government chose to undertake prior to its drafting.

Unusually, only one body, the Scottish Criminal Cases Review Commission, was consulted before the bill was given to the committee. Given the significant data protection issues that we explored, it might have been wiser for the Government to consult more widely to gain a fuller picture of the issues that subsequently arose in relation to part 2.

While we on the Labour benches are happy to support the Government’s motion, we do so with caution and a keen interest in the bill’s progress.

The Government must ensure that both parts of the bill will work effectively when they are put into practice and that, in the eyes of the public, victims of crime and those within the legal system, the legislation meets the benchmarks of integrity, justice and compassion that underpin our legal system.


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