§ 3.11 p.m.
§ The Lord Advocate (Lord Rodger of Earlsferry)
My Lords, I beg to move that this Bill be now read a second time.
Those are not perhaps the words with which I should have chosen to begin a maiden speech in your Lordships' House. Your Lordships may think those words a trifle too frivolous for a Lord Advocate coming before your Lordships for the first time, but the words were given to me and I must make of them what I can.
When she made her distinguished maiden speech to your Lordships a couple of weeks ago, my noble friend Lady Chalker of Wallasey, recalled to your Lordships that in her youth she had been a cricketer. Being a cautious lawyer I have checked my reference, and the noble Baroness said on that occasion, before your Lordships:I am a maiden once more."—[Official Report, 7/5/92; col. 32.]I doubt whether I was the only person who found those words strangely evocative. I could see the noble 554 Baroness only a few years ago dashing around the cricket pitch at Roedean and flying across the lacrosse field. Although I could imagine that—and I am sure that one or two of your Lordships could imagine it also—it is perhaps stretching your Lordships' imagination a little too much to ask you to think of me as "a maiden once more"—or as ever having been a maiden on the playing fields of Roedean. Therefore, I cannot come before your Lordships with the line that the noble Baroness brought forward. So, what then?
The very term "maiden speech" seems to tell us that the speech should be somewhat light and elegant. It should be a graceful concoction—a soufflé rather than a bread-and-butter pudding. But when the maiden speech is to move the Second Reading of the Prisoners and Criminal Proceedings (Scotland) Bill, we are in somewhat heavy country and in solemn waters indeed.
I must therefore ask your Lordships to think of the speech more as being a ship on its maiden voyage, like a liner of yesteryear—on this occasion, unfortunately not Clyde-built, but of solid construction nonetheless, crafted by the riveters and platers of the Scottish Office. But maiden voyages can be hazardous even when they relate to uncontroversial Bills. Icebergs may lie in wait. I am grateful that my noble and learned friend Lord Fraser of Carmyllie will be available to scramble on board and to guide the Bill safely on its voyage.
Your Lordships will note that the Bill has three purposes. First, it proposes a fundamental reform of the parole system, similar to that introduced for England and Wales by the Criminal Justice Act 1991. Secondly, the Bill proposes new arrangements for dealing with life-sentence prisoners and so fulfils, as respects Scotland, the obligations of the United Kingdom under the European Convention on Human Rights. Thirdly, in Part II, it makes a number of useful changes to the law of Scotland on criminal evidence and procedure. I shall give a broad outline of the effects of the provisions and then go through some of the clauses in a little more detail.
I turn first to the reform of the parole system. This takes forward our response to the report of a committee chaired by the very distinguished Scottish judge, Lord Kincraig, entitled Parole and Related Issues in Scotland. The report was generally welcomed on publication and has been valuable in establishing principles which will improve the fairness and effectiveness of the parole system and, very importantly, restore meaning to the full sentence imposed by the court.
At present, as your Lordships will know, after they have served two-thirds of their sentence, prisoners automatically receive remission of the remaining third if they have been of good behaviour. The prisoners are then free from any sanction, even if they should misbehave when they go out into the community. By contrast, under the Bill, any prisoner—at whatever stage he is released—may be returned to custody by a court if he commits an offence punishable by imprisonment during the currency of his original sentence. This means that the sentence imposed by the judge continues to have an effect throughout its whole duration.
555 The next thing to notice is that the provisions on early release embody the fundamental principle that no prisoner will be released, other than on exceptional compassionate grounds, before the half-way point of his sentence. At this point we have to distinguish between prisoners who are serving less than four years and those who are serving four years or more. Prisoners who are serving less than four year will be released automatically at the half-way point of their sentence unless their release is delayed for misbehaviour in prison. In line with the advice of Lord Kincraig's committee, there will be no automatic post-release provision for these prisoners. However, when the court considers at the time of sentencing an offender to between one and four years in custody, that that offender is particularly vulnerable to re-offending, the court will be able to make an order for post-release supervision. The purpose of that order will be to protect the public. It will also assist the offender, through compulsory work supervision and, in that way, we hope that it will avoid him falling back into a pattern of offending on release. A released prisoner who breaches the requirements of a supervised release order will be liable to be returned to custody.
The provisions for prisoners who are sentenced to four years or more are different. For them, release at half sentence will be discretionary rather than automatic. All those cases will be considered by the Parole Board for Scotland which may recommend release, at any stage up to two-thirds of sentence. The recommendations of the board will be based on the central issue of possible risk to the public. If the board does not recommend earlier release then the prisoner will be automatically released on licence at the point of two-thirds of his sentence. Therefore all long-term prisoners—that is, four years and over—whether or not successful in gaining parole, will be released on licence. They will be subject to social work supervision potentially from their release until the end of their sentence, and they will be required to be of good behaviour. If a prisoner breaches his licence conditions, he may be returned to custody, on the recommendation of the Parole Board or subject to the board's confirmation.
The provisions in Clause 2 of the Bill on discretionary life prisoners introduce new arrangements which meet our obligation to change the law in accordance with the European Court of Human Rights judgment in the case of Thynne, Wilson and Gunnell, which dealt with discretionary life prisoners. Your Lordships will know that in cases of murder life imprisonment is mandatory. But sometimes in other cases the court imposes a life sentence in the exercise of its discretion. So a discretionary life prisoner is to be defined as one on whom the court has passed a life sentence partly as a punishment for one or more offences and partly to protect the public. The European Court of Human Rights judgment established that once the punitive grounds of such a sentence no longer hold, the public risk ground is a matter which must be open to review by a body having the status and constitution of a court.
556 Accordingly, your Lordships will find that the Bill makes provision for the sentencing court to determine by order the period for which the prisoner should be detained on punitive grounds. At the end of that period the prisoner will be entitled to periodic reviews by the Parole Board of the continued grounds of his detention. For this purpose we shall bring forward rules under which the Parole Board will be constituted and will function as a court. If the board finds that there are no longer public risk grounds for the prisoner to continue to be detained, it will be able to direct the Secretary of State to release him on licence.
I now turn to Part II of the Bill which deals with matters of criminal procedure. Since its enactment the Criminal Procedure (Scotland) Act 1975 has been amended several times. In some cases the legislative framework has been given a new direction; in others the statutory provisions have been clarified or tidied up. The provisions in this Bill fall more into the category of tidying-up legislation. The measures presented to your Lordships today do not constitute a major reform of the 1975 Act. That is an exercise for another day. Nonetheless, in the light of practical experience and with the development of new forensic techniques, we recognise that the legislation now needs to be modified and updated.
Our proposals include provision to give effect to Part II of the Scottish Law Commission's report on evidence relating to blood tests and DNA tests. The recommendations in Part I relating to civil cases were enacted in 1990. In its report the Scottish Law Commission sets out fully the need for specific statutory provisions in this field. I do not need to go over the reasoning behind those recommendations. Suffice it to say that there is a general desire, which was clearly reflected in the responses to the commission's report, to ensure that the powers of constables to take fingerprints and samples are spelt out on the face of the statute book. There are various other proposals in the Bill which are designed to facilitate the efficient operation of the criminal justice system in Scotland. They are wholly consistent with the Government's commitment to the Justice Charter, which was published in Scotland last November.
As regards the changes to the law of evidence in Scottish criminal proceedings, the Bill includes a provision to enable evidence to be given from abroad by means of live television link. This mirrors a provision which is already available to courts in England and Wales. There are also provisions on children's evidence which further implement recommendations made by the Scottish Law Commission. There are provisions to enable a child in certain circumstances to give evidence at a special hearing, that evidence then being recorded. The recording will be played at the trial. Provision is also made to give authority for the use of screens in criminal proceedings so as to conceal the accused from a child giving evidence. That facility is already available to courts in England and Wales. These measures are designed to add to existing provisions whose purpose is to reduce the stress which is sometimes experienced by children who have to give evidence in criminal proceedings.
557 Perhaps I may now go briefly through some of the individual clauses. Clause 1 of the Bill sets out the new arrangements for early release of short-term and long-term prisoners and continues the existing arrangements for the release on licence of mandatory life prisoners. As I have said, short-term prisoners will be released unconditionally at the point of half their sentence but they will have a continuing liability to recall for reoffending. Your Lordships will find the provision dealing with that matter in Clause 16. Long-term prisoners—prisoners serving four years and upwards—will be eligible for parole at half their sentence but will in any event be released on licence no later than two-thirds of their sentence. Life prisoners who are not discretionary lifers may be released by the Secretary of State at any time after consultation with the judiciary and on the recommendation of the Parole Board.
Clause 2 introduces the new arrangements for discretionary life prisoners, which I have already mentioned. Clause 3 gives the Secretary of State a new power to release any prisoner early on exceptional compassionate grounds. This is a minor but useful provision. At present, for example, where a prisoner is terminally ill, there is no method of early release except by resort to the somewhat inappropriate use of the Royal Prerogative of Mercy.
Clause 4 re-enacts, with modifications, certain existing provisions for prisoners who have been transferred to a mental hospital during their sentence. Clause 5 brings fine defaulters and those sentenced for contempt of court within the ambit of the new early release arrangements. Clauses 6, 7 and 8 bring young offenders and those few children who are sentenced by the courts within the scope of the new arrangements. Your Lordships will wish to notice, however, that children will continue to be eligible for release on licence at any point from the start of their sentence on the recommendation of the Parole Board.
Clause 9 enables long-term prisoners who are liable to deportation to be released by the Secretary of State without a recommendation by the Parole Board, after serving half their sentence. Clause 10 sets out the conditions under which life prisoners transferred to Scotland from another jurisdiction are to be treated as discretionary life prisoners for the purposes of the arrangements in Clause 2. Clauses 11, 12 and 13 deal with the duration and conditions of licences, in particular the condition of compulsory social work supervision which will attach to all licences at the point of release. This supervision will be subject to national objectives and nationally set standards and will be 100 per cent. funded by the Government.
Clauses 14, 15, 18 and 19 provide for the new supervised release order. This can be viewed as something similar to a short probation order imposed on a short-term prisoner on release from custody. We envisage that when sentencing the courts will wish to use their power to impose a supervised release order in cases where, because of the nature of the offence or the offender's background, they consider that the offender poses a particular risk to the public. Examples would he those convicted of violence or crimes against children.
558 There is provision for the requirements of the order to be varied by the court which made the order, either shortly before or shortly after the actual release. That is so as to take account of any change in circumstances since the original sentence was imposed. There is also provision for proceedings to be taken where an offender breaches the order. Such proceedings could result in the offenders being returned to custody. All court decisions on supervised release orders will be subject to appeal. Under Clause 17, released prisoners who breach licence conditions are also liable to be returned to custody, if the Parole Board so recommends.
Clause 20 and Schedule 2 preserve the existence of the Parole Board for Scotland. I think that this would be a suitable point at which to pay tribute to the board. It has now been working indefatigably for about 25 years. In particular, the chairman, Mrs. Jean Morris, who will be known to many of your Lordships, has presided for nearly 12 years over the board's deliberations. In ensuring the board's continued existence, the statute also makes clear that the central criterion for the board's recommendations should be risk to the public from further offending. The Secretary of State will be able to give the board policy directions, and make rules prescribing the matters that it may take into account. Noble Lords will also note that the Secretary of State is given power to prescribe certain aspects of board procedure. As I have said, such powers will be used in particular to set up a mechanism for dealing with the matter of discretionary life prisoners.
Under the new scheme, the board will consider all parole cases without any prior sift. The Bill, therefore, does not provide for the continued existence of local review committees. In due course, such committees will be wound up. But I think that it would be wrong not to express the Government's appreciation of all the work that has been carried out over many years by local review committees. The work has been carried out by their members—unpaid—who have given up their own time. In future, we hope that such people will be able to continue to serve as parole advisers for whom provision is made in Clause 21 of the Bill. That is a very useful innovation. Such advisers will be able to explain the parole system to prisoners and help them, for example, with formulating written submissions in connection with their applications for parole.
Clauses 22 and 23 make good certain deficiencies in the powers currently available in respect of assigning prisoners to particular establishments and transferring them. Clause 24 makes provision for additional days to be awarded so as to postpone the date of release of a prisoner who is guilty of a breach of discipline. That replaces the existing provision of a sanction of forfeiture of remission. Clause 25 clarifies the status of prison standing orders and other directions made under the prison rules.
There are, of course, other provisions, but I shall now move on to Part II of the Bill which deals with criminal procedure. Clause 28 gives effect to the recommendations in the report on blood tests of the Scottish Law Commission. The clause gives a statutory framework for the taking of fingerprints, 559 impressions and other forensic samples in investigations. In particular, it clarifies the circumstances in which certain samples may be taken without a warrant.
Clauses 29 and 30 make further provision for the modernisation of the law of evidence. In particular, they introduce new provisions in relation to video or audio recording in connection with evidence taken on commission. Clause 31 allows, in certain circumstances, the High Court or the Sheriff Court to receive evidence from abroad by means of a live television link. As I have said, that brings us into line with the position in England and Wales.
Clauses 32 to 34 of the Bill deal with certain provisions relating to the evidence given by children in criminal proceedings. Again, without going into them in detail, they are designed, by the use of modern technology, to ease the position of children giving evidence. Clause 33 is simpler. It allows for the use of screens in such circumstances. Clause 35 deals with matters of routine evidence and Clause 37 simplifies a rather unnecessarily complicated way of dealing with business while a jury is out of the court considering its verdict.
Clause 38 amends the legislation relating to the backdating of sentences which is an important matter. Clause 39 amends the Criminal Procedure (Scotland) Act 1975 to enable the Crown to make application to the court to set aside a conviction where the prosecutor believes that that conviction should indeed be set aside. Schedule 4 deals with various minor procedural changes with which I do not need to detain your Lordships.
In conclusion, the Bill provides what I and the Government consider to be a coherent package of reforms to the parole and early release systems. It also contains a set of useful improvements to the law on criminal evidence and procedure. I cannot say that the Bill's voyage could claim any blue riband for its speed; but, craving your Lordships' indulgence, it does, nonetheless, seem to me that the proposals and the package have much to commend them. I beg to move.
Moved, That the Bill be now read a second time. —(Lord Rodger of Earlsferry.)
§ 3.36 p.m.
§ Lord Macaulay of Bragar
My Lords, on behalf of all Members of your Lordships' House perhaps I may welcome the noble Lord, Lord Rodger of Earlsferry, to the Government Benches. We have had the benefit of a complete explanation of this very important Bill. I was interested to note that the publications of the noble and learned Lord include Owners and Neighbours in Roman Law and that his hobby is walking. That gives a new meaning to the Harry Lauder song, "Roamin' in the Gloamin'." But, there it is. We look forward to hearing further contributions from the noble Lord in due course.
It goes without saying that while I congratulate the noble Lord on his appointment and welcome him to his new position in succession to the noble and learned Lord, Lord Fraser of Carmyllie, who has now moved on, although I do not know whether it is sideways or 560 upwards—I see that the noble Lord is indicating downwards—I should have preferred it if the positions were reversed and that it was the noble and learned Lord who was making the speech from where I speak today. The noble and learned Lord, Lord Rodger, has shown himself to be internationally renowned as a lawyer of considerable significance. As I said, we look forward to hearing from him in the future.
The present Bill comes before your Lordships' House for its Second Reading. At the outset, I should say that it is most unfortunate that this House is forced at very short notice to consider not only the Bill but also the report upon which the Bill is based; namely, the Kincraig Report which is the foundation of the Bill. The Kincraig Committee first met in January 1988. It reported to the Government in March 1989: the Government published their response in July 1990. Here we are, nearly two years on, receiving a Bill that has been thrust at us in succession to the gracious Speech and which we have to consider at very short notice.
It was the ineptitude and the lack of management in the last Administration which led to Scotland falling behind in this type of legislation while the Carlisle Report, the equivalent report, was given precedence in your Lordships' House. We have had no opportunity whatever to debate the Kincraig Report. We are faced with a Bill without proper debate. I do not intend to make any major commitment from this side of the House at this stage because of that. We shall take our time to look at the Bill and the issues which it raises in relation to Scotland, bearing in mind that Scotland has a separate legal system and its own prison system.
We have to have regard to the Bill to digest the Kincraig Report, as I have said, at short notice. Basically as I see it, the whole concept is one of balance between protection of the public from offenders and the need to recognise the element of rehabilitation in prison sentences to which the noble and learned Lord has already referred. No one on any side of this House can pretend that there is an easy answer to the problems posed.
In the Kincraig Report there is an emphasis to reduce the prison population balanced with the public perception of punishment and rehabilitation. That is important, because it is how the system appears to the man in the street which is most important.
There is an assumption in the Kincraig Report that judges will not take into account what happens once a person has been sentenced. In other words, the judges will say, "Well this is probably worth four years, but we will give him six because he will be out after 50 per cent. of his sentence is served". The Kincraig Report denies that any such attitude exists. I can say from my own experience and without revealing any confidences—because this was not said to me in confidence—that some judges in the past, at least, have said, "Well, he'll get parole after a certain period of time", and that was reflected in the sentence.
What is problematic in the whole issue is the lack of public input into the report and into the Bill. In the Kincraig Report—looking at the people who have been consulted—there is no representation on behalf 561 of the victims. There is no representation on behalf of the prisoners, apart from an input from SACRO. The victim in all of these matters, as usual, becomes a back number. He has no voice anywhere in the report.
In a long-term sentence, surely before the prisoner is released the victim should be heard to see what has happened to him or her in the intervening period, because the emphasis on release is what has happened to the prisoner in the intervening period.
In the short-term prison sentence, which is four years, it is wrong to assume, as does the Kincraig Report, that anyone who is sentenced, as the report states, to a sentence of over five years has committed a grave crime; and anyone with a sentence of under five years does not need any help when he gets out of prison. It will be well known to those Members of your Lordships' House who were involved in the administration of the law that four years represents a serious crime.
Whether it is grave or serious is a matter of semantics. Very often it is the persistent offender who does not fall into the high category of over five years who needs help; but in terms of this Bill, he will be released into the streets willy-nilly with no support at all. For example, the person who commits the crime of culpable homicide with a single punch, or—as sometimes happens in the case of young persons—with a single stab wound, may very well receive a sentence of over four years. Of course it is a grave crime; but the likelihood of that person re-offending is minimal, whereas the likelihood of a person who is a persistent offender, who has received a sentence of, say, three years, re-offending is very high.
If supervision on release is the keynote of the report and central to the Bill, there is something to be said for looking at the short-term prisoner in relation to post-sentence supervision. He or she may have as many or indeed more problems as the long-term prisoner who may be more settled than the short-term prisoner.
There will be little opposition from this side of your Lordships' House to the general principle of the Bill, bearing in mind that the initiative for the introduction of parole came from a Labour Party study group chaired by my noble friend Lord Longford, followed by the paper, The Adult Offender which paved the way for the Criminal Justice Act 1967.
Parole has become an integral part of the prison system, but it has been the subject of public and judicial criticism. The question which now arises is whether it works; and, if so, whether it can be improved. I accept that the Bill attempts to look at the problem.
The implementation of the Bill and the costs involved will depend on how it works, and in the Bill the Government recognise that there is a financial juggling act to be done in which they cannot forecast what the cost will be. It is all guesswork at the moment.
It would be helpful if any money saved within the prison system were to be put back into the prison system instead of being diverted elsewhere, so that the real problems, the humane problems—the slopping 562 out, and all the rest, with which we are all familiar; we have had plenty of debates about that—can be faced and handled by the prison authorities.
Part I of the Bill raises interesting issues in the concept of the three categories of prisoners: the short-term, the long-term and the life prisoners. Clause 1, dealing with early release, leaves the Secretary of State no option whatever in releasing short-term prisoners. Clause 1(1) states:the Secretary of State shall, … release".Clause 1(2), equally, states:As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him".If I understood the noble and learned Lord correctly, he said that a person could be detained in prison for a longer period than that if he had offended against prison policy. My understanding is that that is against the European law, and that the only addition to a prison sentence which can be imposed is one which is imposed by the criminal courts. Indeed, reference is made to that in the Kincraig Report.
The release of a short-term prisoner is unconditional; the release of a long-term prisoner is on licence. As I have said, this is based on the assumption to which I have already referred, that if a person commits a crime and is sentenced to prison for over four years, he is, by definition, guilty of committing a grave offence.
That approach is illogical and it should be looked at. Clause 1(1) is of course,without prejudice to any supervised release orderwhich a court might impose at the time of sentencing.
The lack of discretion given to the Secretary of State is something that I hope the Government will look at; and perhaps they will substitute the word "may" for "shall" in Clauses 1(1) and 1(2), because it appears in Clause 1(3). Therefore for consistency it might be better if the word "may" appears instead of "shall".
The Bill also raises the vexed question and much debated question of classification of a life prisoner. It classifies them into groups. The first is a "life prisoner"; and the second is a "discretionary life prisoner". That is a complicated and unnecessary classification.
The noble and learned Lord, Lord Morton of Shuna, had hoped to be here as a member of the Select Committee on Murder. The report was debated some time ago in your Lordships' House. Ironically, he has been detained presiding over a murder trial in Inverness. He has asked me to convey his apologies to your Lordships for his absence; but I have no doubt that at the Committee stage we shall hear his powerful voice.
I do not intend to go into the arguments for and against the mandatory life sentence. There will be focus on that at the Committee stage; and, as I have said, I suspect it will lead to the Chamber being asked once more to express its opinion during the Committee stage on whether the mandatory sentence should still exist, albeit that the Bill is basically a Scottish one.
Suffice to say that the Bill underlines the artificiality of the existence of the two types of life sentence. Life should be a sentence always left open to the courts; 563 but once imposed it should mean what it says without artificial classification such as "discretionary" and "non-discretionary".
Clause 2 introduces a new concept of the relevant part of the sentence, and that is adding more confusion to the question of life sentence. At present the Scottish judge can make a recommendation which is not binding on the administration; but now the judge, if the Bill goes through, having decided that life imprisonment is the appropriate way to deal with a case, will then have to say what the relevant part of the sentence is to be. That has a ring of inconsistency, and makes the judges' job difficult. A person has either to be sentenced to life or not.
Clause 3 relates to release on compassionate grounds. As the clause stands, there is no question of a temporary release on compassionate grounds. However, Clause 17(1) (b) contains provisions for revoking a release granted on compassionate grounds, and that, again, is inconsistent. A person who has been released on compassionate grounds can be recalled because his health or circumstances have so changed that he would not have obtained a compassionate release in the first place. That is confusing. Perhaps there should be a measure of flexibility in Clause 3 to allow a temporary release on compassionate grounds.
Many issues will be debated in Committee. There is the question of whether fine defaulters should be included in the amnesty—if we can call it that—because the Bill runs contrary to what the Kincraig Report suggested. In Clause 9 there is again a dual system of punishment, because a person who is due to be deported will be pushed out of prison and out of the country halfway through his sentence. He will be put on a boat or an aeroplane to go somewhere, whereas the Scottish prisoner will be left to be dealt with under the terms of the licence. That may lead to stress within a prison. The Government might also give consideration to the suggestion contained in the Kincraig Report that the life sentence licence should be reviewed periodically and at some stage lifted from the person's shoulders.
Many other issues arise in the Bill. The role of the Parole Board and the introduction of parole advisers are set out in Clauses 20 and 21. The Kincraig Report suggests that volunteers should be parole advisers to prisoners. That is an alarming prospect, because applying for parole plays a vital part in a prisoner's life. He either stays in gaol or he gets out of gaol. It is wrong to have volunteers as advisers. The Government might consider bringing that scheme within the legal aid system.
The Parole Board probably requires some review to take account of modern times. As I said, the prisoner should be represented. There should be someone from the prison—for example, a prison officer—to represent the reality of life within prison. The Kincraig Report said that one member of the Parole Board has served for 14 years. That is far too long for a person to serve on a committee such as that. Consideration should be given to limiting the period of service.
564 Part II is interesting. The taking of samples may lead to confusion. Clause 28 provides that a constable may use reasonable force to take a sample from an external part of the body. What on earth does that mean? What if a prisoner thinks that what the constable is doing is unreasonable? I am thinking especially of sexual cases. Is the male sexual organ to be treated as an external part of the body? Or does the clause relate only to parts of the body visible to the police officer? Perhaps the Government will give that matter some thought. The clause provides also that,a constable may take from the person fingerprints, palmprints and such other prints and impressions".I hope that the Government will understand that that provision may lead to difficulties. What constitutes reasonable force is another question.
On the subject of children giving evidence, the Bill does not set out the commissioner's qualifications. I suggest that the minimum qualification for the commissioner should be that he is qualified in law and has experience of the criminal law. There is a gap in that part of the Bill because it does not provide for the accused person to be represented when the child is giving evidence and there is no provision for cross-examination. If a child is to give evidence against someone, it runs contrary to the tenets of natural justice for that person not to be represented. There should be cross-examination at the time the evidence is given, which, as the noble and learned Lord said, will found later proceedings.
I could continue, but I shall not do so. I look forward to what may prove to be an interesting debate on these important provisions for the criminal law of Scotland.
§ 3.56 p.m.
§ Lord Mackie of Benshie
My Lords, I rise with great trepidation to confront the battery of lawyers, soon to be reinforced by that lion of the North after he has finished trying murders in Inverness. I dare say that the Committee stage will be even more boring than Second Reading. Happily, I shall not take part in the Committee stage. One of our tame lawyers will assist the Scots lawyers in their long and tedious discussions.
We on these Benches welcome the Bill, because the extraordinary fact is that we imprison more people in Scotland than any other country in Europe except Northern Ireland. The one fact we know about rehabilitation of criminals is that it seldom takes place in prison.
I welcome this attempt to bring the law up to date and to cope with the appalling problems of rehabilitation and the present rise in crime. I have one or two questions for the noble and learned Lord, Lord Fraser. Obviously the protection of the public is extremely important. Clause 2 ensures that matters will be looked at properly and that as far as possible the mistakes of the past will be avoided.
Clause 13 which relates to regulating the supervision of released persons is important. The Government say that they hope the financial effects of the Bill will be neutral, but if the regulation, supervision and rehabilitation of prisoners is to be effective, that will need a great deal more money than 565 the Government hope to save by the reduction of numbers of persons in prisons. The prisons themselves, as everyone knows, need a great deal more money.
I was interested to read Clause 19 which deals with appeals. I presume that that means that the prisoner may appeal. But it is difficult to see how other interested people—for example, the victim—can appeal against a prisoner being released. I should like a little more information about how the appeal procedure will work when the noble and learned Lord replies. I should also like to know what the judge will do when the jury is out considering its verdict. Will he summon another criminal into court and try him or will he get on with his paperwork, which is what I presume he does? It is a subject about which we shall need a little more information.
That is all I have to say. I understand that the Law Society of Scotland is against one or two points in the rules of evidence, but on the whole the Bill brings the law up to date. It is beneficial and if it can reduce the number of people in prison and start to help them when they come out of prison, it will be a good Bill.
§ 4 p.m.
Lord Campbell of Croy
My Lords, I wish to thank my noble and learned friend for introducing the Bill so clearly and also for his maiden Speech, the first occasion of his taking part in debates in your Lordships' House. I am sure that we all look forward to hearing from him many times in the future.
I shall venture to make a few general observations on Part I of the Bill. My impression is that the overall effect is likely to be the earlier release of prisoners. That is despite two points which my noble and learned friend made, pointing out that the period which a judge has prescribed will continue to be observed through parole. A prisoner will quickly be returned if he commits another offence. Also, normally release will not be before less than half a sentence has been served. Despite that, the general effect of the clauses in the Bill will be earlier release. If I am wrong, I hope that my noble and learned friend Lord Fraser will tell me later.
That brings the hope, provided that crime in Scotland does not increase, that in future there will be less overcrowding in prisons. Whether or not that is one of the aims of the Bill, most of us do not want anyone to stay in prison a day longer than necessary.
The Bill makes changes in arrangements for release and the procedure affecting the Secretary of State and the Parole Board for Scotland. No doubt these proposals have been judged by the Government as improving the prospects of obtaining a balance which should be sought between punishment for offenders, deterrence against repetition, the shortening of custodial periods and protecting the public. Whether the changes will be effective in making such an improvement, only time will confirm.
The decisions which have to be taken by the Secretary of State are often difficult. Perhaps my own experience as a former Secretary of State for Scotland may be helpful to your Lordships. I invite the House to consider the duty laid upon the Secretary of State 566 for Scotland in taking decisions on the release of prisoners convicted of serious crimes, in particular murder. Like the Home Secretary in England, he is required to consider such cases personally.
That is right, because those decisions affect life and liberty. In the Scottish Office a conscious effort has to be made to set aside time for consideration because home affairs are only a part of the Scottish Secretary's functions. They also cover the responsibilities of several large departments in London dealing with subjects in England such as environment, health, education and agriculture. In my case, I was faced with taking such difficult decisions over a period of four years.
It is 18 years since I had to take any of those decisions. I must make it clear that I have not tried to keep up to date with any of the changes made in the meantime. One of the factors, however, which I regarded as being of the greatest importance was the safety of the public, where a released prisoner might become dangerous. For that reason, I am glad to note the provision in Clause 14 for supervision, where necessary for the protection of the public. This is a new procedure which is being introduced.
Clause 20 continues in existence the Parole Board for Scotland. It has become an important part of the system, and I felt that I had good relations with the board and its chairman during my four years. Of course, those were the early years of the board's existence as an independent body. I know Mrs. Morris, the present chairman, well and I can think of no one better to do the job.
The Bill appears to give the board more discretion in relation to the Secretary of State's directions than has been the case in the past. The noble Lord on the Opposition Front Bench has already pointed this out. Under Clause 2, the Secretary of State for Scotland will be bound to release a prisoner on licence in certain circumstances, if the board is satisfied. Thus, to a certain extent under the Bill the board has more discretion and the Secretary of State less. When my noble and learned friend replies, will he confirm that that is so? Is the provision in Clause 2 the first time that the Secretary of State is to be directed by the Parole Board rather than merely advised?
Clause 21 brings a new kind of player onto the scene, the parole adviser. This is someone quite new. Without any commitment, can the Minister indicate roughly what is contemplated here? How many parole advisers will there be at a time when they are at full strength? What kind of person do the Government have in mind? Is it to be a full-time job? Is it to be done by retired people? Will they be former professionals in associated fields, or will they have considerable experience in those fields? We should be glad of information either now or at later stages of the Bill.
I am sure that a Secretary of State will welcome any well-informed advice that he can get. I ask noble Lords to appreciate the role of the Secretary of State confronted with decisions on the following lines. A prisoner, convicted of a violent crime—perhaps murder—has served most of his sentence. Some form of release is being considered into the world outside prison. The Secretary of State will have before him the 567 history of the crime, which may have been brutal; a report on the conduct of the prisoner in prison; probably a psychiatrist's comments as well. It will be considered whether he is likely to be a reformed character, whether he is likely to live a quiet life outside prison as a normal citizen. If so, then most of us would wish him to be released so as to avoid his deteriorating further in prison and becoming a kind of cabbage. Those are the considerations which a Secretary of State has to take into account, but I add again that the safety of the public must be paramount.
I wish to turn to the particular subject of prisoners with mental disorders. They must be considered in any plans for early release. I am glad to see that Clauses 4 and 26 deal with these matters. Clause 4 is concerned with transfers to mental hospitals, but in future fewer mental hospitals will be available and their numbers will gradually decrease. We all know why: it is the Government's policy—widely accepted and accepted by me, if it can be carried out with effective co-ordination—that a majority of mental hospitals, the old ones in particular, should be closed down. Then those who are capable of it, though they may have mental disorders, should be cared for in the community. The National Health Service and Community Care Act 1990 is due to come into full effect in less than a year—April 1993.
I ask: are the Government satisfied that enough mental wards will still be available, say, in 1996, 1999 or later, for what the Bill provides? If not, can such prisoners be treated or supervised satisfactorily in the community? If so, are plans being made now? Are local government authorities, which will in future be responsible, being briefed and prepared?
Those who may have to have dealings with sufferers from mental disorders should, if possible, have basic training, to include awareness of symptoms and information about handling sufferers. The object must be the early recognition of mental trouble and early reference to and advice from the associated psychiatrist. In future I favour such basic training for prison officers because a significant proportion of all prisoners have mental trouble. This is a view, I am glad to say, that is shared by Lord Justice Woolf who inquired into a prison situation in England. Speaking at a conference in London last December arranged by the National Schizophrenia Fellowship, he advocated basic training and briefing on mental disorders for prison staff. He added that on a recent visit to Scotland he had been glad to find that some training had already started. That is good news for those of us who are involved in these matters in Scotland.
In my view, that training should not just be limited to those who handle prisoners. I believe it should be part of a scheme to prepare all those who are involved in our community for dealing every day with members of the public. I refer to railway staff, shop assistants and other such people who deal with the public.
The recent Act of Parliament to which I have referred is designed to increase substantially the number of mentally disabled people circulating in the community. Many of those people would otherwise have been in hospital. Many will be young people.
568 Some will have been in prison only because their illness made them incapable of coping with ordinary life with the result that they resorted to petty crime or created disturbances. I suggest that in due course a new section for the Citizen's Charter might be composed devoted to the subjects of awareness, early recognition of mental disability and civilised and sensitive handling of sufferers. My right honourable friend Mr. Waldegrave is in a good position to consider that point by virtue of his recent experience in the Department of Health.
As regards prison or remand centres, we must aim to anticipate and forestall attempted suicides, usually by young people. I hope that, with assurances on the points I have raised, the Bill will help in achieving the balance I have described.
§ 4.12 p.m.
§ Baroness Carnegy of Lour
My Lords, my noble friend who has just spoken has reminded us of the heavy responsibilities that, when he was Secretary of State for Scotland, he experienced in relation to the release of long-term prisoners. I believe I am right in saying that this Bill somewhat lightens the burden for future Secretaries of State. If I am wrong about that point, perhaps my noble friend will inform me.
I wish to limit my remarks at this stage to one aspect of the Bill, which I shall discuss in a moment. This week the General Assembly of the Church of Scotland will meet in Edinburgh. Every day as the Lord High Commissioner, the Queen's representative, processes up the steps leading to the Assembly Hall he is overseen by a somewhat threatening and more than life-size statue. That statue is a stern reminder of the continuing influence of John Knox upon our habits and culture in Scotland.
One of the darker sides of the way we conduct our affairs—I believe this is part of the continuing John Knox effect—has been that we have consistently been at the top of the imprisonment league in Europe. My noble friend Lord Mackie reminded us of that. We have kept many people in prison without any proof at all that our crime rate, which has remained high by European standards, would increase if we imprisoned fewer people and imprisoned some of those people for shorter periods of time. We have never properly ascertained either whether unnecessary imprisonment, unnecessarily long sentences, and arrangements for parole and early release which can be perceived as unfair, are themselves counterproductive.
In addition overcrowding in Scottish prisons has from time to time produced damaging and massively expensive unrest—we all remember what happened not so long ago at Peterhead —and has resulted in too many people escaping from prison. Such events are always a cause of anxiety for the public and are also a cause of prison unrest. Such changes as have been made in recent years have produced some encouraging signs. The use of community service orders and other alternative sentences for lesser offences has helped to stem the increase in the number of short-term prisoners. In fact we have seen the number of prisoners in Scottish prisons fall in each of the past four years, although that number is still clearly far too 569 high at 4,724. I understand that that is the current figure and it represents more than one prisoner for every thousand men, women and children in Scotland.
This drop in numbers, together with an increase of, I believe, 10 per cent. in prison staff, has reduced overcrowding. The number of escapes has decreased over four years from 96 to 42. In addition we are at last beginning to see a drop in the number of crimes and convictions in Scotland. I noted that this was stated in the press last week or the week before.
I shall address my remarks mainly to Clause 1, which follows three principles enunciated by my noble friend Lord Campbell of Croy. First, imprisonment must of course be a punishment. It must clearly demonstrate to the offender that the public requires that he or she serve a sentence appropriate to his or her offence. Secondly, a prisoner must he held so long as he or she is a serious danger to the public. Thirdly, if a prisoner is not to become so embittered by his time in prison that the likelihood of his reoffending after release is greatly increased, the sentence and the date and conditions for early release must be seen to be fair and just.
It has always seemed to me that some of the vagaries of our prison system in Scotland have increased bitterness quite unnecessarily and therefore have decreased rather than increased the chances of a prisoner going straight after his release. That was certainly the case when I was an honorary sheriff a number of years ago and when I was on the visiting committee of an institution for young offenders. I suspect that it is just as much the case now.
It is not difficult to see how unfair the system must seem to prisoners when, for example, a professional man is sentenced to four years' imprisonment for fraud and he behaves well and is allowed parole after one year and four months whereas a young burglar may receive on the same day a three-year sentence. He also behaves well but is not eligible for release until two years have elapsed. The second man is sentenced to a year less in prison for what is regarded as a lesser offence yet he is held in prison for eight months longer than the professional man I have referred to.
Such a system of sentencing must be seen as unfair by prisoners. If judges try to redress the balance—and the noble Lord, Lord Macaulay, has said that they do—by skewing the sentence and sentencing the second man to four years, that man gets out at the same time as the first man but carries the stigma of the heavier sentence all his life. The Bill addresses this problem. The measures in the Bill will mean that a prisoner sentenced to three years—to use the same example—will be eligible for release after 18 months and someone sentenced to four years will only be eligible for parole after two years, and, if not eligible for parole, he will be eligible for release after two years and eight months. The earliest possible dates of release will in that case reflect the severity of the sentence.
That seems to me absolutely right. It is much fairer. Providing the Parole Board has the clear responsibility of granting parole only when the safety of the public is not threatened, as is clearly stated in Clause 2, that and a number of the other provisions in the Bill, including the interesting new involvement of social 570 work departments, should reduce the number of people in prison. It should also reduce the current counter-productive sense of grievance and the resulting tendency to reoffend.
There are many other interesting and positive aspects of the Bill, some of which have been mentioned by speakers in this debate. I greatly look forward to the Committee stage. I find this a very interesting and promising Bill. I hope that the House will give it a fair wind.
§ 4.20 p.m.
§ Lord Renfrew of Kaimsthorn
My Lords, it is with diffidence that I risk to speak, not having put down my name to do so. However, a couple of points have emerged in the debate which make it seem appropriate that I should say a couple of words.
First, I congratulate my noble and learned friend on his admirable maiden speech, which he treated with gratifying thoroughness. I am sure that the House will look forward to many more contributions of a similar kind.
The focus of the Bill which interests me in particular is that relating to evidence and the indications that various categories of evidence on which emphasis has been placed in recent discussions are being taken into account. In Clause 29 there is provision for the use of audio and visual records, which is a positive step. In Clause 31 there is provision for the use of televisual evidence in controlled circumstances where somebody is giving evidence from abroad; and, in particular, there is provision in Clause 32 that recorded video evidence by children may be admissible under certain well-controlled circumstances. In Clause 33 there is provision that a screen can be utilised so that children giving evidence do not feel themselves to be within the sight of the accused, though the accused may be present and able to follow the giving of the evidence.
However, it is Clause 28 in particular to which I wish to draw attention. It seems that the evidence which may be derived from genetic fingerprinting and the wide range of applications of such scientific testing are so important that I question the wording relating to the taking of blood and certain other samples by means of "swabbing or rubbing." When I have had blood samples taken—not for evidential purposes but for medicinal evidential purposes—it has been by the means of extracting a small sample of blood. That is a specific point, but it arises most conveniently here. I should like to be assured that under the clause the appropriate samples can be taken. I am not sure that rubbing or swabbing provide sufficient opportunity.
It is helpful that the Bill addresses itself to questions of new categories of evidence, but I wish to make the point about the scientific progress of evidence in order to be assured that the Bill makes the necessary provisions to ensure that such categories of evidence are admissible and that the necessary samples can legally be taken.
§ 4.24 p.m.
§ Lord Carmichael of Kelvingrove
My Lords, first I must congratulate the noble and learned Lord, Lord Rodger of Earlsferry, on his maiden speech. I must make a personal apology. I was not aware that it was a maiden speech, because I seem to have seen the noble and learned Lord around, in various places, for quite a long time. I apologise if I disturbed the normal tenor of the House. It was a very helpful maiden speech, giving a good résumé of the Bill which will be very helpful when we reach the Committee stage. Perhaps at this point I may ask the noble and learned Lord whether there is any intention of providing Notes on Clauses for the later stages of the Bill.
The noble and learned Lord, Lord Fraser of Carmyllie, seemed to think that he had taken a step downwards after having been Lord Advocate. The important point is that he has been Lord Advocate. As I know from people in the Scottish legal firmament, it does not matter what happens afterwards once you have held that post.
The noble Lord, Lord Mackie of Benshie, made some comments about speaking on Bills such as this. I am at least as nervous. Way back in 1967 I foolishly made a speech on an English Criminal Justice Bill, partly because I was told that there was no provision in that Bill for parole to be extended to Scotland. Because I made a speech on that subject I was appointed to the Committee on the Bill. Incidentally, I re-read the speech recently. I only hope that the people in Hansard in this House are as kind as they were in the other place because the speech reads quite well.
There were only two non-lawyers dealing with that Bill, Victor Yates, who represented a Birmingham constituency and myself. It was so much a lawyers' Bill that in order to accommodate them we met only on Wednesday afternoons so that they could be in court the rest of the week.
Since then I have dealt with many Scottish Bills relating to the criminal justice system and prisons, as has the noble and learned Lord, Lord Fraser of Carmyllie. Those measures have all aimed at trying to reduce the prison population. It is appalling that the present size of the prison population in Scotland puts us almost at the top of the European league. The size of the prison population was the main reason for the 1967 Act and many other Acts, but it appears still to be rising. This Bill should help, but there have been a number of false dawns before. Still the numbers rise.
A number of speakers have paid tribute to the Parole Board. I do not want to be a dog in the manger; I have every respect for Mrs. Morris and the work she has done on the Parole Board. However, as has been suggested—it may have been in the Kincraig Report —I consider that two terms are sufficient for anyone in such a job. Otherwise, whether they like it or not, no matter how capable, honest and self-searching they are, in the eyes of the public they become part of the Establishment. I would hope that we could at least discuss whether we should reduce the length of time any one person can serve on the board.
I agree fully with my noble friend Lord Macaulay of Bragar about the composition of the Parole Board.
572 I believe that we should do something to widen the composition and include people who are less Establishment and who have greater involvement with the criminal justice system, despite the very good work that is done now.
In earlier Bills, which the noble and learned Lord, Lord Fraser of Carmyllie, will remember, we talked of detoxification units as a means of reducing the prison population. I believe that the unit in Aberdeen has now been closed, yet the police in Aberdeen thought that it was a great help. It allowed people to stay overnight or for a couple of nights after which they returned to their families or their normal work.
Obviously, we approve of the backdating of sentences to the date of remand. That has been requested for a very long time. It should produce a reduction in the prison population. However, accommodation for prisoners after they are released from prison is woefully scarce at present. Many prisoners find, particularly after having been in prison for a number of years, that their roots have been lost. Some of them, probably those most likely to offend again, have no solid home background or any place to go to. SACRO, with which I was associated for a long time, has some accommodation but it is inadequate compared with the scale of the problem.
It is difficult to suggest that certain houses should be allocated to people who come out of prison, although that has certainly worked for a number of psychiatric cases coming from mental hospitals. In view of the general housing problems in Scotland, it may seem unfair to give priority to people coming out of prison. However, it could prove ultimately to be a very cost effective way of dealing with prisoners. Perhaps some way of extending the accommodation provided by organisations such as SACRO or the YMCA, which, considerably subsidised, would enable prisoners to have somewhere to go on their release from prison, can be considered.
There are undoubtedly other problems in the terms of release. On looking through the Kincraig Report, I noticed the concept of training for freedom. I wonder whether that is helpful. I have the feeling that when people are given training for freedom, the pressure put on them is sometimes just too great. There have been a number of cases of people who were being given training for freedom outside prison and who, for some reason or other, committed a very minor offence. Noble Lords may remember the case of a man in Edinburgh who was released early from the work he was doing, who had had half a pint of beer in a pub and who was waiting for a bus when the offence occurred. He was put right back again to the beginning.
The same sort of thing happens when people come out of a special unit. They are put right down to the bottom of the heap, sewing mailbags in some cases. We almost seem to be trying to test them to destruction. That is basically unfair although I understand that many people have survived because of their experience in the special unit.
This Bill has a great many points in its favour but it will fail unless the Government are willing to look at the cost to the social services. I do not like the 573 suggestion in the Bill that there will be a saving in the prisons which can be given to the social services. Surely part of the rationale for a reduction in the prison population—which is something that we all want—is to have a good enough ratio of prisoners to officers so that prisoners can be given training within the prison.
I believe that it would be a good policy for the prison officer population to be maintained as it is at present, with a reduction in the number of prisoners, so that more time could be given to training. Perhaps there would even be an increase in the ability of prisoners to take trade or educational courses.
Despite all that, there will be a tremendous strain on the social services. One point that we shall need to study carefully in Committee is the implications of the Bill for the local authority social services. As I said, the Bill, by and large from what we have seen so far —we shall discuss it more closely in Committee—appears to be a step forward. It is perhaps not as big a step as the noble and learned Lord the Lord Advocate suggested but it is a step forward in the Scottish penal system and we are grateful for it.
§ 4.35 p.m.
§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie)
My Lords, in winding up this short debate, I should like, first, to welcome to the Front Bench my noble and learned friend the Lord Advocate. I have worked with him over recent years when I was the Lord Advocate and I am delighted that he joins me on the Front Bench in your Lordships' House. In the course of the past year he has appeared not only before the European Court of Human Rights on behalf of the United Kingdom; he has also appeared before the European Court of Justice and, most recently, before the International Court of Justice. I venture to suggest that that is a record of advocacy that is unlikely to be equalled by anyone. I am grateful that he joins me and has participated in this debate today. I hope also that he will take part in the later Committee and Report stages of the Bill.
In opening for the Opposition, the noble Lord, Lord Macaulay, seemed to me to be particularly churlish. The Bill has enjoyed widespread support in Scotland. One of his complaints was that the committee had not consulted widely enough. If he had ploughed through the report and got to Chapter 1, towards the end of the first sentence he would have found that groups of members of the committee visited HM Prisons Barlinnie, Cornton Vale, Edinburgh, Glenochil, Perth, Peterhead and Shotts. If he had persevered and reached paragraph 1.2, he would have found that Lord Kincraig's committee made special arrangements for staff and inmates of penal institutions to be notified of our interest in receiving their comments. As a consequence, some 44 prisoners responded to the proposal. Moreover, social work departments and others have a keen interest in the concerns of the victims.
Subsequently, some 40 responses were received by the Government when a further invitation was offered to comment on the report produced by Lord Kincraig for the Government. There are some detailed points of 574 criticism or clarification that remain to he resolved, but in the main the report has been very well received in Scotland. Some queries raised in the course of your Lordships' debate this afternoon wanted to probe the question of whether it would result in more or fewer people being in prison. I do not think that an objective either way was in mind. We indicated that we wanted —as is found in our response to the Kincraig Report —the proposals to form a structured and well balanced framework for the release of offenders from prisons and young offenders institutions in Scotland. I believe that we have achieved that objective.
As my noble and learned friend the Lord Advocate made clear, there has also been the necessity to bring the position in Scotland into line with that obtaining in England and Wales in order to meet our obligations under the European Convention on Human Rights with regard to those who are detained in prison under discretionary life sentences. While that has been in place for some time in England, we have taken this opportunity to get the position correct in Scotland.
Perhaps I may say to the noble Lord, Lord Campbell of Croy, whose intervention I much welcomed, that he knows very well the anxious and difficult decisions that Home Secretaries and Secretaries of State for Scotland have to take when deciding whether or not those held in prison under life sentences should be released on licence. This is the first time that the Secretary of State for Scotland will be directed by the Parole Board, which for the first time will function as a court. That functioning of the Parole Board as a court goes toward discharging our responsibilities and obligations.
The noble Lord, Lord Macaulay, seemed to be suggesting that the distinction between short-term and long-term prisoners was illogical. However, the recommendation of the Kincraig Report was that only those serving long sentences should be eligible for parole and that was generally welcomed. The introduction of a system of discretionary release for short-term prisoners would effectively bring those prisoners back into the parole scheme. It was felt that that was not a worthwhile way of approaching matters when a sentence was of that duration.
A number of questions were asked about parole advisers. However, given the number of issues that were raised during the course of the debate, I probably shall not have time to develop them. Parole advisers will be members of the community in the locality of the prison who have an interest in penal matters and who may have been involved with the prison in a voluntary or official capacity. There will be between one and five advisers in any long-term establishment.
I was asked whether notes on clauses will be provided for noble Lords who wish to participate in later proceedings. While those are not immediately available, they will be made available. I am sure that the noble Lord, Lord Mackie of Benshie, who characterised these proceedings as being long, dull and tedious, will be an active and enthusiastic contributor to our discussions in Committee after being armed with a full set of notes on clauses.
The noble Lord, Lord Campbell of Croy, expressed concern that the reduction in the number of mental 575 hospital places will mean that an insufficient number of beds will be available. There is no question of prisoners who are liable to detention being looked after in the community. Transfer prisoners represent only a tiny proportion of the number who are sufficiently mentally disordered to be detained in hospital and there will be no difficulty in finding beds for such patients.
My noble friend Lady Carnegy raised a number of points about how the community will regard the way in which the sentences and parole are ordered after the changes have been introduced. I hope that as we develop our discussions in Committee my noble friend will appreciate that there will be no risk to anyone in the community. In Scotland our record of detaining people in prison is curious. I am never entirely sure that the figure putting us at the top of the league in Europe is accurate. However, we wish to achieve a position where people are not detained unnecessarily in prison but are able to return to the outside world, possibly with proper supervision if that can be arranged, having regard to the safety of the public.
There was little discussion about Part II of the Bill dealing with criminal proceedings. My noble friend Lord Renfrew raised the taking of samples under Clause 28. He is correct in saying that in many circumstances where blood is sought for use in the new DNA techniques and so forth it will be necessary to take a full and proper blood sample. If that is so, existing powers in Scotland allow for it. Clause 28(6) states:Nothing in this section shall prejudice—I understand that it may be possible to obtain sufficient genetic material for examination without the taking of significant blood samples. That sets the matter in a hierarchy of importance but I must emphasise that, at the end of the day, the individual is properly protected. If more intimate searches or samples are required, it will be necessary to go to the court to secure a warrant.
- (a) any power of search;
- (b) any power to take possession of evidence where there is imminent danger of it being lost or destroyed".
The noble Lord, Lord Macaulay of Bragar, asked about the evidence of children. He appears to be under the misapprehension that a commission is to be provided to take the child's evidence in advance of the trial with no opportunity for examination or cross-examination. That is not correct. It is envisaged that the child's evidence will be taken before a commissioner, who may be the trial judge, as happened in a recent case in Scotland. As a child is giving evidence there will be the opportunity both to examine and to cross-examine. We are conscious of the fact that if we deprive the accused person of his right to cross-examine we might find ourselves in contravention of the European Convention. As the Bill makes clear, the important safeguard is that the accused should not be in a position to be in direct eye contact with the child in such a manner that the child might be disturbed or frightened about giving evidence. If the noble Lord wishes to explore that matter or any other in Committee, I shall welcome his intervention.
576 The Bill is not controversial in any party-political sense. It will be of considerable importance in properly arranging our affairs in Scottish prisons. There will be a number of important reforms and improvements to our system of criminal proceedings. Doubtless there will be some details which we must explore in Committee. I look forward to that but trust that the proceedings will not be too long or too tedious.
On Question, Bill read a second time, and committed to a Committee of the Whole House.