The Criminal Justice and Licensing (Scotland) Bill was
introduced to the Scottish Parliament by Kenny MacAskill, Cabinet
Secretary for Justice, on 5 March 2009, and passed Stage 3 of the
parliamentary process on 30 June 2010. The Bill is now
awaiting Royal Assent before becoming law. This SCPO Briefing Paper
is intended to give an overview of the key provisions in the
bill. However, as the final Bill contained over 200 sections,
with almost 700 proposed amendments at Stage 2 and a further 200 at
Stage 3, this briefing paper is, by necessity, non-exhaustive. The
Briefing will, however, lay out the provisions of interest or
importance to Scotland's churches which were agreed to by
Parliament, as well as noting some significant proposals which were
amended or removed at various points throughout the Bill's passage
through Parliament. As ever, further information is available
from SCPO; contact us through our website, or using any of the
contact details below.
The Bill, as agreed after Stage 3, is available to view on the
Parliament website at this address:
http://www.scottish.parliament.uk/s3/bills/24-CrimJustLc/b24bs3-aspassed.pdf
Scottish Parliament Bill Process: a quick
reminder
Stage 1: Scottish Parliament Committee
considers the Bill, prepares a report, and the whole Parliament
debates the general principles of the Bill.
Stage 2: MSPs can lodge amendments on the
specifics of the Bill. These amendments are considered by the
Committee and can be accepted, rejected, or withdrawn. The
Committee Convener holds significant power in this context, as he
or she is allowed to use their casting vote in the event of a tie
in the 8-member committee (and unlike the Presiding Officer in the
Parliament is not obliged to vote to retain the status quo).
Stage 3: MSPs can lodge amendments at this
stage too, but the amendments are considered in front of the whole
Parliament, and all MSPs can vote on these amendments.
Following Stage 3 amendments, a motion to pass the legislation as a
whole is then put to the Parliament and MSPs vote on this too.
Sentencing
Scottish Sentencing Council
The Bill establishes a Scottish Sentencing Council which is
intended to ensure consistency in sentencing, and raise awareness
of sentencing policy and practice. Following extensive
amendments at earlier stages of the Bill to recalibrate the ratio
of judicial to non-judicial members, the Council will be
constituted of six judges and six non-judges including a
representative defence lawyer, prosecution lawyer and a lay member,
and will be chaired by the Lord Justice Clerk. The powers of the
Council were also reined in following recommendations made by the
Justice Committee in their Stage 1 report which suggested that
guidelines produced by the Council should only take effect after
ratification by the High Court. This altered the role of the
Council to an advisory one. The Joint Faiths Advisory Board on
Criminal Justice, an interfaith board with representatives from the
Church of Scotland, Scottish Episcopal Church, Catholic Church,
ACTS and the Scottish Interfaith Council, had responded to the
initial proposals in the Bill supporting the establishment of a
Scottish Sentencing Council, but had urged greater lay
representation on the Council, saying they "would particularly
welcome additional lay members from the Scottish Prison Service,
criminal justice social work teams and Community Justice
Authorities."
Sentencing Guidelines
The Bill as first introduced contained provisions to outline the
"purposes and principles of sentencing", and would require the
courts to give regard to these guidelines. At Stage 2 of the
Bill process, the Justice Committee decided to accept the amendment
proposed by Robert Brown (Lib Dem) to delete the entirety of
section 1, as it was argued to be unnecessary that sentencing
guidelines be established in statute.
Aileen Campbell (SNP) sought to amend these guidelines to
require courts to take account of "any responsibilities the
offender has for the care of children or dependent adults" when
making a decision on the sentencing of offenders. Based on
estimates that around 16500 children in Scotland are affected every
year by a parent in prison (more than are affected per year by
parental divorce), her amendment was supported by Scotland's
Commissioner for Children and Young People and the Government, but
was defeated in a vote in the Justice Committee. All members
other than SNP voted against the proposal, with a suggestion that
it may lead to an inconsistency of treatment depending on whether
offenders have children or not; but also a suggestion that the
amendment was simply unnecessary since social inquiry reports exist
already for a court to make a decision on appropriate
sentences.
However, unlike other amendments which fell at Stage 2 in the
Committee and were reintroduced at Stage 3, Ms Campbell was unable
to reintroduce her amendment as the relevant section of the bill
relating to sentencing guidelines had been removed from the
Bill.
Short sentences
The Bill as first introduced included a number of
recommendations made by the Scottish Prisons Commission, an
independent commission chaired by former First Minister Henry
McLeish. One of the recommendations was a presumption against
short sentences of imprisonment of six months or less, preferring
instead community-based sentences as the default unless there are
exceptional reasons to require a custodial sentence of six months
or less. This was one of the most high-profile and contentious
aspects of the Bill, with Labour and Conservative members of the
Justice Committee voting to remove the provision relating to the
presumption entirely from the Bill at Stage 2 of the process.
However, the Government reintroduced the provision for Stage 3 when
the whole Parliament would have the opportunity to vote on the
Bill. Kenny MacAskill originally tabled a Stage 3 amendment
reintroducing a presumption against sentences of 6 months or less,
but later lodged another amendment lowering the sentence length
from 6 to 3 months. Evidence was cited during the debate
about the significantly higher levels of reoffending by those given
short custodial sentences compared to community sentences, whilst a
letter to MSPs from the Moderator of the General Assembly of the
Church of Scotland was quoted in the debate: "All the available
evidence affirms that short periods of imprisonment do not work.
They damage family relationships leaving 16,500 children separated
from a parent; they separate offenders from their communities and
they damage employment prospects". The Joint Faiths Advisory
Board on Criminal Justice also urged MSPs to support the
presumption against short sentences.
This amendment to introduce a presumption against short
sentences of 3 months or less was supported in the Parliament by
Lib Dem, Green and Independent MSPs, and therefore garnered
sufficient support to be included in the Bill. Labour and
Conservative MSPs both opposed this amendment, with Labour members
quoting a Women's Aid briefing which had been circulated to all
MSPs ahead of the debate saying that 68% of custodial sentences for
domestic abuse are under 3 months, and this is often just enough
time for the victims of domestic abuse to seek help away from their
aggressor. In response to these concerns the Justice Secretary
highlighted that this is a presumption, rather than a mandatory end
to short sentences.
Community Payback Orders
The Bill seeks to streamline all community sentences into a
single Community Payback Order, which is intended to replace
existing community sentences and supervised attendance
orders. CPOs can comprise of work orders, supervision
requirements, drug or alcohol treatment orders and testing, mental
health treatment requirements or residency requirements. The
underpinning theme of this new Order is, however, the more explicit
reference to the offender 'paying back' to the community. The
Community Payback Order has proved controversial, but this is
predominantly due to the fact that CPOs are intended to be used in
place of short custodial sentencing. The financial
implications of increasing the capacity for local authority
criminal justice social work departments to deliver community
sentencing was of considerable concern throughout the passage of
the Bill, with the
Finance Committee querying the Government's cost estimates for the
implementation of the policy in the financial memorandum
accompanying the Bill. Lib Dem member on the Justice
Committee, Robert Brown, also tabled an amendment at Stage 2 to
delay the implementation of the provisions in the Bill regarding
the presumption against short sentencing until the Government had
provided a full report detailing the expected numbers of community
payback orders, the expected decrease in short custodial sentences,
and the cost implications of these changes. This amendment
fell, however, as Robert Brown was unable to win support from any
of the other members of the Committee.
On the practicalities of delivering community payback orders,
there were a few amendments at Stage 2 which are significant.
On the issue of travelling expenses for those carrying out a
community payback order, a Government amendment which sought to
establish in law what already happens in practice, where travelling
expenses are considered on a case-by-case basis for those who have
to travel to carry out community sentences, was passed. Labour
members on the Committee abstained from the vote, citing the
financial implications for the public purse for their
abstention.
An amendment at Stage 2 by Angela Constance (SNP) to include a
provision whereby the type of community payback order must be one
which the criminal justice social work officer responsible for
assigning the order considers will offer "significant benefits in
the area in which the work or activity is undertaken" was
withdrawn. This was agreed after the Cabinet Secretary and
Committee Convener both suggested that although this is ultimately
the intention of community payback orders, it may be difficult to
immediately justify "significant benefits" of requiring an offender
to attend alcohol counselling sessions or accessing literacy
programmes, although these may have long term benefits for the
community in terms of reducing reoffending.
The Joint Faiths Advisory Board strongly welcomed the provisions
in the Bill relating to Community Payback Orders, especially the
potential for restorative justice principles to play a more
significant role in the criminal justice system.
Alcohol and sentencing
Following its deletion at Stage 2, the Government lodged an
amendment at Stage 3 to reintroduce a section which will provide
that at the point of sentencing, a court must not consider
voluntary intoxication a mitigating factor. Kenny MacAskill
argued this point saying "the issue is changing the culture that
exists in Scotland that somebody is actually quite a nice fellow,
but it was the drink that did it." The amendment carried, although
it was taken to a vote, which went as follows: For 47 (SNP,
Independent), Against 33 (Conservatives, Lib Dem, Green),
Abstentions 45 (Labour).
Sentencing on Offences aggravated by
Prejudice
Relating to aggravations of race or religion, the Bill amends
existing legislation to require the court to explain how the
aggravation has affected (or not affected) the sentence
administered. The Bill also introduces a provision which
provides that the aggravation can apply even if prejudice relating
to religion is not the sole motivation for the offence. This is
already the case for racial aggravations and therefore brings
religiously motivated offences into line with these
aggravations.
Double Jeopardy
An amendment put forward by Committee Convener Bill Aitken
(Conservative) relating to double jeopardy, the ability to be tried
for the same crime twice, was withdrawn after receiving assurances
from the Cabinet Secretary that this issue will be consulted on and
separate legislation brought forward in due course.
Mandatory minimum custodial sentencing for carrying a
knife
Labour and Conservative amendments were lodged at Stage 2 of the
Bill process to attempt to add a section into the Bill which would
require that anyone caught carrying a knife would be subject to a
mandatory custodial sentence: the Labour amendment proposed a
minimum jail term of 6 months, while the Conservative amendment
sought to extend this to 2 years. Whilst the Conservative
amendment was unsuccessful, the Labour and Conservative Committee
members (on the Conservative Convener's casting vote) succeeded in
adding the 6 month minimum to the Bill. The Church and
Society Council of the Church of Scotland had submitted evidence to
the Justice Committee opposing the proposals, saying that "…such a
rigid response is at odds with the real need of society which is to
address the underlying reasons for people choosing to carry
knives". However, an amendment to delete the section was proposed
at Stage 3, which was supported by SNP, Lib Dem, Green and
Independent MSPs, and so this section does not appear in the final
version of the Bill.
Criminal Offences
Stalking
Labour MSP Rhoda Grant had introduced amendments to the Bill at
Stage 2 to create a criminal offence of stalking - previously a
common law offence - but had withdrawn these, in order to lodge new
amendments in conjunction with the Government who were seeking to
tighten up the law in relation to breach of the peace, in
particular "threatening, alarming or distressing behaviour".
The reworked Stage 3 amendments were agreed to, therefore
establishing stalking as a statutory offence, alongside
clarification on the law on breach of the peace, which can occur in
a non-public place, for example in the domestic context. Following
some concern within sections of the Christian community that the
Government's proposed Stage 2 amendments were wide enough to
threaten freedom of speech (in particular, religious expression),
the Justice Secretary assured Parliament that the concerns about
infringing individuals' freedom of expression had been dealt with
by narrowing the scope of the offence, and the intention behind the
amendments was "to deal with stalking and with breach of the peace
offences in domestic violence situations or against police
officers. We continue to guarantee that those who have Christian
views can express their views without coming before the
courts."
Prostitution
Several new provisions were proposed by MSPs at Stage 2 relating
to prostitution, notably an amendment lodged by Labour MSP Trish
Godman to outlaw prostitution: criminalising the user rather than
the provider of sexual services. This amendment fell at both
Stage 2 and Stage 3 of the process; however, Ms Godman has already
signalled her intention to launch a fuller consultation on the
issue with the intention of pushing for legislation to provide
better protection for those working in prostitution (consultation
expected in September).
People Trafficking
The Bill extends the scope of offences, by including the
facilitation of "entry into" as well as "arrival in" the UK as
offences liable for prosecution. The changes contained in the Bill
will mean that facilitating the arrival in or entry into the UK of
a person for the purposes of exploitation, regardless of where the
facilitation took place and irrespective of the nationality of the
facilitator, will be an offence under Scots law.
Related to this, a new offence of holding a person in "slavery,
servitude and forced or compulsory labour" has also been included
in the Bill, applying Article 4 of the European Convention of Human
Rights which prohibits this exploitative behaviour into Scots
Law.
Criminal Proceedings
Changes to Jury Service
David McLetchie (Conservative), supported by Age Scotland
(formerly Age Concern Scotland and Help the Aged in Scotland)
successfully added a section to the Bill removing the upper age
limit for exemption from jury service. The bill, as
introduced, proposed raising the upper age limit from 65 to 70, but
the intervention by Mr McLetchie means that there will be no upper
age limit, although the Bill allows an opt-out for people over 70
who do not wish to serve.
Age of Criminal Prosecution of Children
The age at which a child can be prosecuted for an offence will
be raised from 8 to 12. However, despite attempts by Robert
Brown at Stages 2 and 3, the age of criminal responsibility remains
at 8. This means that children can accept liability for a
criminal offence between the ages of 8 and 12, but it will be
through the welfare-based Children's Hearings system.
However, in its Stage 1 Report on the Children's Hearings
(Scotland) Bill, the Education, Lifelong Learning and Culture
Committee stated its concern that children are still carrying
criminal records even when they have accepted liability for
offences through the welfare-based Children's Hearings
system. The age of criminal responsibility and the
implications of that age threshold, therefore, will continue to be
debated in the Parliament as the Children's Hearings Bill moves to
Stage 2 after the Parliamentary summer recess.
Critics of this anomalous situation are particularly concerned
that children who admit committing an offence within the context of
this welfare-based system may still be liable to have a criminal
record which will impact on future opportunities.
Remand of children in adult prisons
The Bill will repeal provisions existing in legislation which
currently allows for children aged 14 and 15 to be detained on
remand in prison. This section in the Bill therefore means
that where a child under the age of 16 years is not released on
bail or ordained to appear he or she should be remanded to the
local authority to be detained either in secure accommodation or a
suitable place of safety.
Retention of Samples
(a) Children
Related to the implications of behaviour classed as 'criminal'
amongst children are the provisions pertaining to the retention of
DNA samples of children - even if they go through the Children's
Hearings system rather than the criminal courts. If a child
(and their 'relevant person' - parent or guardian) accepts the
grounds with which they have been referred to the Children's
Hearings system - specifically for 'violent crime or sexual
offences', their DNA data can be retained for a minimum of 3 years,
with scope for extension of this time limit.
Although an attempt at Stage 2 had been made by Labour member
James Kelly to extend the duration of retention of samples to an
infinite time period for children who had been found to have
committed a violent or sexual offence, this was disagreed to.
The Committee (and, subsequently, the Parliament at Stage 3)
rejected Lib Dem Robert Brown's attempts to require that DNA of
children could be kept only if there were an application by the
chief constable to the sheriff, who would have to be satisfied that
the child continued to pose a risk to public safety that justified
DNA retention.
(b) Adults
In Scotland, samples must be destroyed once a decision not to
prosecute is taken or if proceedings end without a conviction.
For individuals who have had criminal proceedings begun against
them, but which have not resulted in conviction, the destruction of
data which currently applies contains an exemption for DNA data on
those accused of certain serious violent or sexual offences, which
can be retained for 3 years, and can be subsequently extended by a
further 2 years by a sheriff, on a rolling basis.
Attempts to increase this limit for initial retention of samples
from 3 to 6 years would have brought Scotland into line with
English law; but the amendment fell amidst concern that the
extension of time was in contravention of European human rights
guidance on the subject.
The Bill extends the type of samples which can be retained under
this exemption, and therefore will enable fingerprints, palm prints
and other "relevant physical data" to also be retained.
The Bill also includes a new provision into existing legislation
which allows for the retention of samples of individuals who accept
a fixed penalty notice, provided the individual was arrested for a
fixed penalty offence. This data can be retained for 2 years,
but in this case, there is no option to extend this period of
retention.
Licensing
Market Operators Licence
Section 125 which would have allowed local authorities to remove
the voluntary sector exemption from market operator licence fees
for the operators of private markets (ie markets at which goods are
offered by more than one seller for sale to the public). Following
representations to MSPs from the voluntary sector, including the
Church of Scotland Guild, the whole section was removed from the
bill at Stage 2. This, therefore, leaves the law at the
status quo: charity and community groups will remain exempt from
having to pay licence fees at private market events, such as car
boot sales etc.
Alcohol
When the Criminal Justice & Licensing Bill was first
introduced in March 2009, it included sections relating to alcohol
licensing, particularly sections proposing a social responsibility
levy on licensed premises, and raising the minimum age for the
purchase of alcohol. These provisions were removed by the
Government with the agreement of the Justice Committee at Stage 2,
and introduced (alongside other measures to tackle Scotland's
relationship with alcohol) in the Alcohol Etc. (Scotland) Bill.
Licensing of adult entertainment venues
Sandra White (SNP) reintroduced a group of amendments at Stage 3
which she had also taken to the Committee during Stage 2 concerning
the licensing of adult entertainment venues. Her original amendment
sought to add new provisions to the Bill giving local authorities
the power to apply a specific licensing regime to lap-dancing and
other adult entertainment venues which would give local authorities
the power to say that no licences should be granted for venues in a
particular locality. These amendments had proved
controversial as the definition was too wide, and thus attracted
opposition from the performing arts sector in relation to the
provisions about nudity. Ms White said her new amendment was a
refinement on the previous one, and she reiterated that it was not
about banning lap-dancing clubs, rather it was about giving local
people the power to control what takes place in their communities.
She was supported by her SNP colleagues, but could attract no
further support and the amendment was defeated 45 - 76.
Opponents said that the amendments were not clear enough on how
this would affect existing establishments, and would create an
extra level of bureaucracy for local authorities in addition to
their existing licensing procedures.
Conclusion
With over 90 responses to the original call for evidence, a
further 134 responses to a call for evidence on the new provisions
at Stage 2 (carrying a knife, prostitution and adult entertainment
licensing), and oral evidence from over 40 witnesses representing
the Government, law enforcement bodies, Scottish Courts, the Prison
Service, local authorities, voluntary organisations and academics;
this Bill was a significant piece of work for the Scottish
Parliament's Justice Committee. Described by Kenny MacAskill as "a
comprehensive piece of legislation that takes forward the
Government's priorities to reform our justice system by providing
measures that strengthen, simplify and modernise it"; the hard work
of implementing these reforms now begins. However, with
obvious points of disagreement amongst the parties on many of the
issues arising in this Bill, (Labour spokesman on Justice, Richard
Baker said in his summing up: "what divides us on the Bill is far
more significant than what unites us") it is clear that criminal
justice continues to be a contentious policy issue, and looks set
to be a battleground area in the forthcoming 2011 Scottish
Parliament elections.
Back to top