J2/S2/06/26/A JUSTICE 2 COMMITTEE AGENDA 26th ......J2/S2/06/26/2 abcde abc a SE Approved Version...

J2/S2/06/26/A

JUSTICE 2 COMMITTEE

AGENDA

26th Meeting, 2006 (Session 2)

Tuesday 24 October 2006 The Committee will meet at 1.30 pm in Committee Room 2. 1. Decision on taking business in private: The Committee will consider whether

to take item 4 in private. 2. Legal Profession and Legal Aid (Scotland) Bill: The Committee will consider

the Bill at Stage 2 (Day 3). 3. Custodial Sentences and Weapons (Scotland) Bill: The Committee will take

evidence from—

Jane Richardson, Rachel Gwyon, Annette Sharp, Brian Cole and Charles Garland, Justice Department, Scottish Executive

and then from—

Gery McLaughlin, Paul Johnston and Andrea Summers, Justice Department, Scottish Executive

4. Custodial Sentences and Weapons (Scotland) Bill – appointment of

adviser: The Committee will consider a list of candidates for the post of adviser. 5. Christmas Day and New Year’s Day Trading (Scotland) Bill (in private):

The Committee will consider a draft Stage 1 report.

Tracey Hawe/Alison Walker Clerks to the Committee

Papers for the meeting— Agenda Item 2 3rd Marshalled List of Amendments for Stage 2 3rd Groupings of Amendments for Stage 2 Members are reminded to bring with them copies of the Bill, Explanatory Notes and Policy Memorandum, available from Document Supply or from the Parliament’s website (http://www.scottish.parliament.uk/business/bills/56-legalProfession/index.htm) together with any papers from the Stage 1 process that are considered relevant (such as the Committee’s Stage 1 Report). Agenda Item 3 Lines of questioning (PRIVATE PAPER) J2/S2/06/26/1 Correspondence from SE including flowcharts J2/S2/06/26/2 showing custodial sentences processes SPICe briefing on Custodial Sentences J2/S2/06/26/3 SPICe briefing on Weapons J2/S2/06/26/4 Agenda Item 4 Note by SPICe (PRIVATE PAPER) J2/S2/06/26/5 Agenda Item 5 Draft report (PRIVATE PAPER) J2/S2/06/26/6 Supplementary evidence J2/S2/06/26/7 Documents circulated for information only— Letter from Deputy Minister for Justice on prescribed categories for the extension of advice and assistance payments Letter from Minister for Justice on secure facilities for female mentally disordered offenders, (including original letter from Justice 2 Committee Convener) Letter from Minister for Justice on the re-appointment of the Director of the SDEA Scottish Executive news release on Risk Management Authority appointments Forthcoming meetings— • Tuesday 31 October 2006, Committee Room 1, 1.30pm (joint meeting with Justice 1 Committee, then followed by Justice 2 Committee meeting)

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J2/S2/06/26/2

abcde abc a SE Approved

Version 1.1

abcdefghijklm = gìëíáÅÉ=aÉé~êíãÉåí = m~êçäÉ=C=iáÑÉ=pÉåíÉåÅÉ=oÉîáÉï=aáîáëáçå Anne Peat Senior Clerk The Scottish Parliament Justice 2 Committee EDINBURGH EH99 1SP

pí=^åÇêÉïÛë=eçìëÉ=oÉÖÉåí=oç~Ç=bÇáåÄìêÖÜ=beN=Pad===qÉäÉéÜçåÉW=HQQ=EMFNPNJOQQ=NUOP=c~ñW=HQQ=EMFNPNJOQQ=UTVQ=dê~ÉãÉKï~ìÖÜ]ëÅçíä~åÇKÖëáKÖçîKìâ=ÜííéWLLïïïKëÅçíä~åÇKÖçîKìâ==vçìê=êÉÑW==lìê=êÉÑW= ==NP=lÅíçÄÉê=OMMS

_____ _____

Dear Anne CUSTODIAL SENTENCES AND WEAPONS (SCOTLAND) BILL 2006 – FLOWCHARTS SHOWING CUSTODIAL SENTENCES PROCESSES Please find attached flowcharts that depict the processes for:

• custody and community prisoners; • section 12 (arrangements for Parole Board to set further review); and • life prisoners.

These have been prepared in advance of Stage 1 proceedings in order to aid the Committee’s understanding of the legislative arrangements for custodial sentences set out in the Bill. I would be grateful if you could ensure that copies of these are provided to the Committee’s members. Yours sincerely GRAEME WAUGH Parole and Life Sentence Review Division

Joint workingarrangements betweenLAs and SPS (includesongoing assessment)

S7

Offender approachesend of custody part.and is assessed by

SMs to determine if theoffender would, if notconfined, be likely to

cause serious harm tomembers of the public.

S8

- Offender progresses tocommunity part S9 underlicence containingconditions set by SMsunder S25

Sentence imposed by court = 15 days ormore; court makes order specifying custody

part: minimum 50%; maximum 75% fordeterrence and retribution

S6

Sentence expires onsentence end date. A

breach of licence couldresult in the licencebeing revoked (see

flowchart showing S31process)

PB determineswhether the

offender presentsa risk of serious

harmS10 & S8

PB sets licenceconditions - one of

which will besupervision - and

directs SMs torelease to

community partS11 & S27

PB sets licence conditions -one of which will be

supervision - and offenderreleased to community part

once 75% of sentenceserved

S14 & S27

Process for custody andcommunity prisoner

PB sets date for further reviewOR for setting licence

conditions depending on lengthof custody part remaining (see

flow chart showing S12process)

S12

Yes

Further reviewby PBS13

SMs - ScottishMinisters

PB - Parole Boardfor Scotland

LA - local authority

SPS - ScottishPrison Service

YesNo

No

Was the maximumcustody part of 75%

set by the court?Yes

No

PB sets licence conditions -one of which will be

supervision - and SMs mustrelease offender to

community part once 75% ofsentence served

S14 & S27

Parole Board agrees offenderwould, if not confined, be likely

to cause serious harm tomembers of the public.

S10

Are theremore than 4 months

before 75% pointof sentencereached?

S12

Parole Board specifiesconditions to be includedon offender's community

licence.S12(6)

Supervision mandatory(S27)

No Yes

Are there morethan 2 years

before 75% pointof sentencereached?

S12(3)

The further review musttake place in no less than

4 months but no morethan 2 years from the date

of the previous review.S12(4)(a)

The further review imust takeplace a minimum of 4 monthsbefore the date of 75% of the

sentence being reachedS12(4)(b)

Section 12

SMs refer caseto PB

S9

Yes

No

SMs - Scottish Ministers

PB - Parole Board for Scotland

75% - the maximum period of time that a custody and communityprisoner can spend in custody

4 months - the minimum amount of time during which it is considered ameaningful change in risk status can take place

This explains the processwhere an offender has beenreferred to the Parole Boardon grounds of risk and theBoard does not directrelease.

Where an offender is servingmore than one sentence, heor she won't be referred untilbefore the expiry of the lastcustody part (or punishmentpart if one or more of thesentences is a life sentence).S22

Court sets pubishmentpart of life sentence

S15

SMs refer case to PBbefore punishment part

expiresS16

PB determines if theoffender would, if notconfined, be likely to

cause serious harm tomembers of the

public.S17

- PB directs SMs to releaseprisoner on life licence andspecifies licence conditions:S18, S26 and S27

Processfor life prisoner

Prisoner (not released)informed of reasons inwriting and a date fixed

(within a 2 year period) fora further review

S19

SMs must refer prisoner'scase to PB before date

fixed by PBS20

YesNo


PB - Parole Board forScotland

Punishment part - theperiod of a lifesentence the courtdecides the offenderneeds to serve for thepurposes of retributionand deterrence.

Licence in force for remainder ofoffender's life (S28). A breach oflicence could result in the licence

being revoked (see flowchartshowing section 31 process).

Offender subject tolicence conditions in the

communityS24, 25 &26

Offender breaches - oris considered likely to

breach - a licencecondition

PB determines that theoffender would, if not

confined, be likely to causeserious harm to members of

the public S33

Remain subject to licenceconditions in the

community

Process for breachof licence

Licence revoked andoffender returned to

custodyS31

SMs refer case to the PB within 2weeks of the offender's return to

custody S32OR

before any date fixed for a furtherreview S33

Yes

No


PB - Parole Board forScotland

CC - custody andcommunity

Licence in force for: (a) life prisoner - remainder of

offender's life and (b) custody andcommunity prisoner - remainder of

the sentence. S28

YesNo

In public interest torevoke the licence andrecall the offender to

custody?

No

Yes

PB directs SMs torelease the offender onlicence and specifies

licence conditionsS33(4)

PB sets date for furtherreview of the case

ORdepending on length of

sentence remaining, detain aCC prisoner until thesentence end date

(S34)

CUSTODIAL SENTENCES AND WEAPONS (SCOTLAND) BILL: CUSTODIAL SENTENCES

GRAHAM ROSS

The Scottish Executive’s Minister for Justice introduced the Custodial Sentences and Weapons (Scotland) Bill in the Parliament on 2 October 2006. The Parliament’s Justice 2 Committee has been designated as lead committee for parliamentary consideration of the Bill. This briefing considers the provisions on custodial sentences set out in Parts 1 and 2 of the Bill. It also sets out the existing arrangements for the release of prisoners in Scotland; responses to the Sentencing Commission for Scotland’s consultation; and the provisions in the Bill which deliver on the policy set out in the Executive ‘White Paper’ Release and Post Custody Management of Offenders published in June 2006. A separate SPICe briefing looks at the provisions on weapons set out in Part 3 of the Bill.

SPICe briefing 19 October 2006 06/80

Scottish Parliament Information Centre (SPICe) Briefings are compiled for the benefit of the Members of the Parliament and their personal staff. Authors are available to discuss the contents of these papers with MSPs and their staff who should contact Graham Ross on extension 85159 or email [email protected]. Members of the public or external organisations may comment on this briefing by emailing us at [email protected]. However, researchers are unable to enter into personal discussion in relation to SPICe Briefing Papers. If you have any general questions about the work of the Parliament you can email the Parliament’s Public Information Service at [email protected]. Every effort is made to ensure that the information contained in SPICe briefings is correct at the time of publication. Readers should be aware however that briefings are not necessarily updated or otherwise amended to reflect subsequent hanges.c

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mailto:[email protected]



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providing research and information services to the Scottish Parliament 2

CONTENTS KEY POINTS OF THIS BRIEFING...............................................................................................................................3

INTRODUCTION ..........................................................................................................................................................4

CURRENT ARRANGEMENTS FOR THE RELEASE OF PRISONERS.....................................................................4 SHORT-TERM PRISONERS............................................................................................................................................5 LONG-TERM PRISONERS..............................................................................................................................................5 EXTENDED SENTENCE PRISONERS ...............................................................................................................................5 LIFE PRISONERS .........................................................................................................................................................6 LICENCES...................................................................................................................................................................6 LICENCE CONDITIONS..................................................................................................................................................7 LICENCE CONDITIONS FOR SEX OFFENDERS .................................................................................................................7 HOME DETENTION CURFEW ........................................................................................................................................7

SENTENCING COMMISSION CONSULTATION........................................................................................................8 THE PRINCIPLE OF EARLY RELEASE OF PRISONERS .......................................................................................................8 THE SCOPE OF SCHEMES FOR THE EARLY RELEASE OF PRISONERS................................................................................9

Criteria for early release.......................................................................................................................................9 Discretionary/Automatic early release ...............................................................................................................10 Stage of early release ........................................................................................................................................11 Determinate and life sentence prisoners ...........................................................................................................11

THE ADMINISTRATION OF SCHEMES FOR THE EARLY RELEASE OF PRISONERS ...............................................................12 Decisions on early release.................................................................................................................................12 Conditions applying on early release .................................................................................................................12 Supervision following release from custody.......................................................................................................13

THE ROLE OF THE SENTENCING JUDGE IN THE EARLY RELEASE OF PRISONERS .............................................................14 SANCTIONS FOR RE-OFFENDING OR BREACH OF CONDITIONS OF LICENCE ....................................................................15 KEY RECOMMENDATIONS ..........................................................................................................................................15

General...............................................................................................................................................................16 Prisoners sentenced to 12 months or less.........................................................................................................16 Prisoners sentenced to more than 12 months ...................................................................................................16 Sheriff’s sentencing powers ...............................................................................................................................17 Recall to custody for breach of licence or Home Detention Curfew ..................................................................17 Return to custody by the courts .........................................................................................................................17 Single terming of sentences...............................................................................................................................17

SCOTTISH EXECUTIVE PROPOSALS ....................................................................................................................18

PROVISIONS OF THE BILL ......................................................................................................................................19 PART 1: THE PAROLE BOARD FOR SCOTLAND ............................................................................................................19

Parole Board Rules ............................................................................................................................................20 PART 2: CONFINEMENT AND RELEASE OF PRISONERS ................................................................................................21

Combined structure – Custody Part...................................................................................................................21 Community Part .................................................................................................................................................23 Life prisoners......................................................................................................................................................23 Children convicted on indictment and sentenced to detention ..........................................................................24 Fine defaulters and persons in contempt of court..............................................................................................24 Community licences ...........................................................................................................................................25 Breaches of community licence .........................................................................................................................25 Life licences .......................................................................................................................................................25 Single licence .....................................................................................................................................................25 Curfew licences..................................................................................................................................................26 Compassionate release on licence ....................................................................................................................26 Persons detained under mental health provisions.............................................................................................26 Supervision ........................................................................................................................................................26

COSTS......................................................................................................................................................................27 SOURCES ..................................................................................................................................................................28


KEY POINTS OF THIS BRIEFING • The Custodial Sentences and Weapons (Scotland) Bill contains provisions on two broad

policy areas: provisions on custodial sentences and provisions relating to knives and swords

• Parts 1 and 2 of the Bill contain provisions relating to custodial sentences. These

provisions aim to deliver the Scottish Executive’s commitments to end automatic and unconditional early release of offenders and to achieve greater clarity in sentencing

• The Bill provides for the continuation of the Parole Board for Scotland as a Tribunal Non-

Departmental Public Body. It will continue to discharge its functions under the Prisoners and Criminal Proceedings (Scotland) Act 1993. Provision is made for the Board to carry out other functions given to it in other provisions of the Bill (in effect the new arrangements for custodial sentences) or in any other legislation

• The current system of automatic and sometimes unconditional early release will be

replaced by a new sentence management regime for custodial sentences of 15 days or more comprising a custody part and a community part

• The custody part of the sentence will be imposed by the court for the purposes of

punishment and deterrence. It will always be a minimum 50% of the sentence although this can be increased to a maximum of 75% if the court considers it appropriate for the purposes of punishment and deterrence

• The court will explain the consequences of the sentence at the time it is imposed

• The risk the offender poses will be continuously reviewed during the custody part. If there

are indications that, at the end of the court imposed custody part, the offender still poses a risk of serious harm to the public (and the custody part is less than 75%), the case will be referred to the Parole Board for Scotland to consider whether or not the offender should continue to be detained in custody on grounds of risk. If the Board concludes that the offender presents a risk of serious harm to the public, it can direct that the offender is kept in custody up to a maximum of 75% of the sentence

• The community part of a sentence will be a minimum of 25% and offenders will be on

licence throughout the duration of the community part

• Serious breaches of licence conditions, whilst serving the community part, which show that an offender is an unacceptable risk to public safety will result in a recall to custody

• Offenders sentenced to less than 15 days will spend the full period in custody and be

released unconditionally

• Fine defaulters and those held in contempt of court will serve any custodial sentence in full, regardless of the length of the period of custody imposed

• The existing arrangements for dealing with life sentence prisoners will not change and

are being re-enacted in the Bill


INTRODUCTION The Custodial Sentences and Weapons (Scotland) Bill (“the Bill”) was, together with Explanatory Notes (and other accompanying documents) (all references in this briefing are to the “Explanatory Notes”) and a Policy Memorandum, introduced in the Parliament on 2 October 2006. On 15 May 2003 the Scottish Executive published “A Partnership for a Better Scotland: Partnership Agreement” (Scottish Executive 2003). The document set out the principles by which the Labour Party and the Liberal Democrats in Scotland would develop and implement their policies in Scotland over the next four years. As part of the Agreement, the Executive stated that they would set up a judicially-led Sentencing Commission for Scotland (“the Commission”). The Commission, which is independent of the Scottish Executive, was launched in November 2003, and was given the remit to review and make recommendations to the Scottish Executive on:

• the use of bail and remand

• the basis on which fines are determined

• the effectiveness of sentences in reducing re-offending

• the scope to improve consistency of sentencing

• the arrangements for early release from prison, and supervision of prisoners on their release

The Scottish Executive indicated that, in the context of the arrangements for early release from prison and supervision of prisoners on release, it wanted the Commission to review and make recommendations on early release and supervision for all classes of prisoner. On 21 June 2005, the Commission published its consultation paper “Early Release from Prison and Supervision of Prisoners on their Release” (Sentencing Commission for Scotland 2005). The Commission pointed out that their review did not seek to cover the administrative arrangements for the temporary release of prisoners (as governed by the Prison (Scotland) Rules 1994) nor the detailed arrangements relating to the throughcare of prisoners, that is, the strategy relating to the transition of offenders from prison into the community. This briefing sets out current arrangements for the release of prisoners in Scotland (pages 4 - 7); the Sentencing Commission for Scotland’s consultation and responses to the consultation (pages 8 -17); and the legislative proposals set out in the Scottish Executive’s ‘White Paper’ Release and Post Custody Management of Offenders published in June 2006 (page 18). The briefing then goes on to consider the provisions on custodial sentences set out in Parts 1 and 2 of the Bill (pages 19 – 27). A separate SPICe briefing looks at the provisions on weapons set out in Part 3 of the Bill.

CURRENT ARRANGEMENTS FOR THE RELEASE OF PRISONERS Discretionary early release on licence (parole) has operated in Scotland since 1967. The existing statutory regime is contained in the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”). The 1993 Act has been frequently amended since it came into force on 1 October 1993, most recently by the Management of Offenders etc. (Scotland) Act 2005 (“the 2005 Act”) which received Royal Assent on 8 December 2005. The 2005 Act ended



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unconditional early release for sex offenders serving sentences of six months or more1 and also introduced a scheme of Home Detention Curfew (HDC). With the exception of these recent changes, early release from prison is governed by sentence length. The current arrangements are as follows.

SHORT-TERM PRISONERS Once short-term offenders (i.e. offenders sentenced to a term of less than four years) have served one-half of their sentence the Scottish Ministers are under a duty to release them unconditionally (i.e. not on licence). The offender may be returned to custody if convicted of a further “imprisonable offence” before the original sentence has expired if the court orders this in terms of section 16 of the 1993 Act. The period of renewed custody may be up to the balance of the original sentence (from the date of the new offence to the sentence end date of the original sentence). Statistics are not kept on how frequently the power in section 16 of the 1993 Act is used by sentencers although it is not thought to be often (Sentencing Commission for Scotland 2006, para 3.3). As noted above, the Management of Offenders (Scotland) Act 2005 introduced new provisions for sex offenders sentenced to a period of imprisonment of between 6 months and 4 years. These offenders are now released on licence, rather than released unconditionally, at the half-way stage of their sentence. Licence conditions for this group of offenders are explained later in this briefing.

LONG-TERM PRISONERS Once long-term offenders (i.e. those sentenced to a term of four years or more) have served one-half of their sentence they may be released on licence. The decision to release rests with the Parole Board for Scotland. Where the Parole Board recommends release the Scottish Ministers are under a duty to release the offender. The Parole Board also decides on licence conditions. The licence, unless previously revoked, expires at the sentence end date (i.e. the date on which the full sentence imposed by the court expires). If not released at the halfway stage, once long-term offenders have served two-thirds of their sentence the Scottish Ministers are under a duty to release them on licence. Again, the Parole Board decides the licence conditions. The licence, unless previously revoked, expires at the sentence end date. A long-term offender (in the same way as a short-term offender) may be returned to custody by the courts under section 16 of the 1993 Act if he commits another imprisonable offence before the sentence end date.

EXTENDED SENTENCE PRISONERS Extended sentences allow courts to impose additional post-release supervision on a licence if a court considers that the normal sentence would not provide a period of supervision of sufficient length to protect the public from serious harm. An extended sentence may be imposed on offenders convicted of certain sexual or violent offences. All offenders subject to an extended sentence are released on licence. Where the “custodial term” is less than 4 years the offender is released automatically at the half-way stage of the custodial term. The licence, unless previously revoked, does not expire until the end of the full extended sentence imposed by the court i.e. the custody part and the extension period.

1 Prior to the 2005 Act, all prisoners serving sentences of four or more years were released on licence after having served two-thirds of their sentence.


As for other long-term prisoners where the “custodial term” is 4 years or more the offender may be released after serving half of this term if the Parole Board recommends (in effect, directs) early release. If the Board does not recommend release, the offender will be released after serving two-thirds of the “custodial term”. In either case the licence, unless previously revoked, does not expire until the end of the full extended sentence imposed by the court (i.e. the custody part and the extension period).

LIFE PRISONERS The law covering the treatment of offenders sentenced to life imprisonment was changed by the Convention Rights (Compliance) (Scotland) Act 2001. A life prisoner is one sentenced to life imprisonment for murder (mandatory) or for a crime other than murder (discretionary) and has a “punishment part” set by the court. This is the period that the court considers appropriate to satisfy the requirements for retribution and deterrence, ignoring the period of confinement, if any, which may be necessary for the protection of the public. A life prisoner is reviewed for release by the Parole Board after serving the punishment part in full and will continue to be confined for the protection of the public, if this is deemed necessary by a tribunal of the Parole Board. Further reviews of a life prisoner’s case are undertaken on a date determined by the Parole Board, subject to each review taking place at not more than two-yearly intervals. Under the new arrangements now in operation, life prisoners who breach the terms of their licence (which exists to the end of the person’s natural life) will be liable to be recalled to custody by the Scottish Ministers. On return to custody the grounds for the (recalled) offender’s detention will continue to be reviewed by a tribunal of the Parole Board. The Executive has stated that there is now substantial jurisprudence to suggest that these arrangements remain fit for purpose and, consequently, there will be no change to the current law (Scottish Executive 2006).

LICENCES Where an offender released on licence breaches a condition or conditions of that licence, he is liable to be recalled to custody. Having been informed of a possible breach of licence, either by local authority social workers or the police, the Scottish Ministers can:

• issue a warning letter to the offender (for “minor” breaches)

• refer the matter to the Parole Board for it to take a decision on whether or not the offender should be recalled to custody

• if the nature of the breach suggests significant risk, recall the offender to custody without

referring the matter to the Parole Board in the first instance Where an offender’s licence is revoked, his case, unless he receives another custodial sentence, will be referred to the Parole Board to consider whether or not they should be re-released. (If the Parole Board was involved in recommending that the licence be revoked then different members of the Parole Board will consider this reference). If the Parole Board is satisfied that the offender does not require to continue to be detained it will direct immediate re-release. The Scottish Ministers are under a duty to release the offender, on licence, as soon as is reasonably practicable. Where the Parole Board does not direct immediate re-release the offender is liable to be detained until the end of the sentence imposed by the court (plus any period during which the offender was unlawfully at large) but may subsequently be further reviewed by the Parole Board for release on licence, normally on an annual basis, depending upon how much of the original sentence remains to be served.


LICENCE CONDITIONS Section 12 of the 1993 Act deals with licence conditions. The standard conditions of a licence, and also any conditions applying in particular cases, are a matter for the Scottish Ministers. However, Ministers must consult the Parole Board about the standard conditions, and also about any specific or additional conditions to be applied in a particular case. Section 12(2) of the 1993 Act stipulates that all licences shall include from the outset a condition requiring the person subject to the licence:

• to be under the supervision of a relevant officer of such local authority as may be specified in the licence and

• to comply with such requirements as that officer may specify for the purposes of

supervision

LICENCE CONDITIONS FOR SEX OFFENDERS Section 15 of the 2005 Act amends the 1993 Act to provide that short term sex offenders (those sentenced to 6 months or more but less than 4 years) shall, on release at the half-way point of sentence, be subject to licence conditions – including electronic monitoring if considered appropriate – and supervision for the remainder of their sentence. The provisions in the 1993 Act dealing with licence conditions, supervision, revocation of licence and recall to custody still apply to these offenders and Scottish Ministers will set the licence conditions. Local authorities will be responsible for supervising these offenders in the same way as is provided currently for all prisoners who are sentenced to imprisonment for 4 years or more, prisoners receiving extended sentences and life sentence prisoners released on life licence. Failure to comply with licence conditions will result in recall to custody by Scottish Ministers in cases of urgency or on the recommendation of the Parole Board for Scotland. The Board will also determine suitability for re-release on licence. In practice this means that this group of prisoners will no longer be released unconditionally.

HOME DETENTION CURFEW The 2005 Act also introduced a new discretionary power to release prisoners on what is commonly known as “Home Detention Curfew” (HDC). This allows the Scottish Prison Service, on behalf of the Scottish Ministers, to release prisoners on licence a short time before they would be eligible for automatic release or, in the case of long term prisoners, for release on licence on the direction of the Parole Board. The length of the HDC period varies according to the sentence length, but cannot be less than 14 days or more than 135 days. The prisoner must be serving a sentence of at least 3 months, and must spend at least 4 weeks in custody. Certain classes of prisoner are excluded entirely. The exclusions cover situations where the prisoner may be considered as a high risk, where special post-release arrangements are already in place or where the prisoner has failed to comply with a previous licence. Home Detention Curfew is not a sentencing option for the courts. It is distinct from other uses of electronic monitoring, such as Restriction of Liberty Orders, in being an option for the management of those sentenced to imprisonment. The decision making therefore lies in the hands of Ministers rather than the courts though in practice this decision will be taken by officials in the Scottish Prison Service and local authority Criminal Justice Social Work.


Consideration will only be given to the release of long term prisoners on HDC following a recommendation from the Parole Board at the half-way stage of such a prisoner’s sentence. As risk does not correlate to sentence length, the intention behind HDC is to consider it as an option for both short term and long term prisoners whom the Parole Board have assessed as eligible for release on parole licence at the half-way stage of their sentence.

SENTENCING COMMISSION CONSULTATION The consultation on the early release from prison and supervision of prisoners on their release was launched by the Sentencing Commission for Scotland on 21 June 2005. Over 800 copies of the consultation paper were distributed to a wide range of individuals and organisations in the public, private, voluntary and academic sectors. The consultation paper contained 32 questions that the Commission considered to be key to its deliberations on early release. These questions focussed on five areas:

• the principle of the early release of prisoners

• the scope of schemes for the early release of prisoners

• the administration of schemes for the early release of prisoners

• the role of the sentencing judge in the early release of prisoners and

• sanctions for re-offending or breach of conditions of licence during the period before expiry of the original sentence

In its Report following the consultation, the Commission felt obliged to record its disappointment with the modest number of responses received, especially from the judiciary. Less than 10% of those to whom the consultation paper was issued replied. The following paragraphs provide a summary of the Sentencing Commission’s commentary on the responses to the consultation received on the five areas outlined above.

THE PRINCIPLE OF EARLY RELEASE OF PRISONERS The consultation asked whether the law should require every prisoner to serve the whole period specified in a sentence of imprisonment in custody, or whether it should continue to provide that part of the sentence should be served in the community. The vast majority of respondents (92.5%) were of the view that the law should continue to allow prisoners to serve part of their sentence in the community. However, a number of respondents qualified this view by stating that early release should not be automatic, that the decision should be based on an assessment of risk to the public and that only those who had shown remorse for their actions and a ‘suitable attitude’ to change should be considered for early release. Only three respondents did not think that prisoners should be able to serve part of their sentence in the community, arguing that it would be more effective if the whole period specified was served in prison. They also argued that early release works against the principle of clarity in sentencing as victims and the public legitimately expect that the offender will serve the full sentence imposed in custody. Four main themes emerged from those respondents who were in favour of early release:


• early release provides an incentive to good behaviour in prison and therefore aids prison management

• early release provides an incentive to prisoners to tackle their offending behaviour • early release provides an opportunity for prisoners to be “tested” in the community under

conditions in which they are provided with support • early release reduces prison overcrowding

COSLA commented that:

“…early release schemes provide clear incentives for adhering to prison rules making prisons much less demanding to manage. In addition, it is also clear that early release schemes can have an impact on reducing the prison population. While this is not in isolation a reason for implementing such schemes, any attempts to restrict the prison population to manageable levels has benefits for prisoners, prison staff and the public purse” (COSLA 2006).

Three main themes emerged from those respondents who argued against schemes for the early release of prisoners:

• early release schemes are perceived negatively by victims and the general public • early release puts the public at risk from re-offending by releasing offenders before the

end of their sentence • automatic early release provides no incentive to prisoners to behave within prison or to

address their offending behaviour Several respondents also suggested that current methods of risk assessment are not sufficiently robust to ensure that high risk offenders are identified as such. The consultation asked whether the overall size of the prison population should have any significance in determining the existence and nature of schemes for the early release of prisoners. Sixty three per cent of those who responded to this question felt that the size of the prison population should be of no significance in determining the existence and nature of schemes for early release. Several respondents argued that the size of the prison population is distinct from, and should always be distinct from, consideration of the appropriate punishment for the crime.

THE SCOPE OF SCHEMES FOR THE EARLY RELEASE OF PRISONERS

Criteria for early release The consultation asked what the criteria should be for early release. A wide variety of responses were received on this issue with respondents representing particular perspectives tending to advance criteria reflecting those perspectives. For example, those representing victims’ organisations felt that the acknowledgement of the offence, empathy for the victim and recognition by the offender of the impact of the crime on victims should be prerequisites for early release. A number of respondents on this issue identified risk of harm to the public or the community as being an important factor when making decisions on early release, with some suggesting that this should be the sole determining factor on whether to release an offender. Good behaviour whilst in prison and compliance with the prison regime was also identified as being a factor which should be taken into consideration indicating a view that early release should be earned


rather than being automatic. The seriousness of the offence was also put forward as being a factor that should be taken into consideration. The Commission pointed out that the very mixed range of responses to this particular question indicated that the decision on whether to grant early release is regarded as being based on a wide variety of considerations and is potentially complex:

“The majority of respondents felt that a range of factors should be taken into account but the basis on which decisions to grant prisoners early release are currently made does not appear to be widely understood” (Sentencing Commission for Scotland 2006, Annex A, page xi).

Respondents were also asked to comment on whether there should be the same or separate schemes for short-term and long-term prisoners. The majority of those who commented on this issue felt that there should be separate schemes for short-term and long-term prisoners as the practical realities of resource constraints meant that it would be unrealistic to expect that all prisoners could be supervised on release. A number of respondents stated that a ‘one size fits all’ approach would be inappropriate as short-term prisoners generally do not pose the same level of risk and therefore do not require the same level of supervision on release.

Discretionary/Automatic early release The consultation asked for comments on the justification for discretionary and automatic early release. From the responses received on discretionary release, four themes emerged. It was argued that discretionary release could be justified because it allowed for the possibility that people can change and it was not possible to predict at the time of sentencing how each prisoner would progress. Discretionary early release therefore allowed a prisoner’s progress or lack of it to be recognised. Discretionary early release also enables prisoners to be supported and supervised in the community, allowing progress to be monitored, and the possibility of recall to custody provides a safety net for the community. It also allows release decisions to be taken on the basis of an assessment of risk and therefore allows low risk prisoners and those whose risk can be managed in the community to be released early. Finally, discretionary early release provides prisoners with an incentive to co-operate with the sentence management regime and to participate in addressing offending behaviour programmes. Only two respondents to this question indicated that there was no real justification for discretionary early release. With regard to automatic early release, 18 respondents addressed this issue with six respondents indicating that there was no justification for automatic early release. The remainder felt that automatic early release could be justified for the following reasons:

• it limits the amount of time lower risk offenders spend in prison

• it is a pragmatic response to managing the size of the prison population

• it provides an incentive for good behaviour within prison and

• it allows prisoners to be “tested” in the community while they are subject to licence conditions

With regard to the nature of the offence having a bearing on the timing of release, the overall response showed strong support for maintaining separate regimes for short and long term prisoners, although in many instances, this support was based on practical considerations and a view that it is simply not possible to provide the same regime for all prisoners. The view was expressed that the nature of the offence is given adequate consideration at the time of


sentencing and that this is the correct point for differentiating between different crimes. Many respondents indicated that the primary factors in determining whether a prisoner should be released early should be risk of re-offending and risk to the public, rather than the nature of the offence. However, some respondents felt that there should be different schemes of early release for certain “types” of offender. Amongst the offender types who were thought to require different treatment were sex offenders, serious violent offenders and life sentence prisoners. It was also suggested that first offenders and persistent offenders should be treated differently. Respondents were asked whether they thought that all early release should be on a discretionary basis. A small majority indicated that they did not think that all early release should be discretionary and argued that for prisoners who present little or no risk to the public then automatic and/or unconditional release should continue. Another view was that existing procedures for the early release of long-term prisoners should be retained on the basis that it is more sensible to have high risk offenders re-integrated into the community on supervision rather than releasing them at the end of the sentence with no supervision. Those respondents who felt that all early release of prisoners should be discretionary argued that automatic early release should be discontinued since it results in the true length of prison sentences bearing little resemblance to the sentence imposed by the court. They also argued that automatic early release has no value in terms of prison management since prisoners are released early irrespective of their behaviour while in custody.

Stage of early release Respondents were asked to comment on the point at which prisoners should be considered for early release. There was a wide variety of responses on this issue and these are summarised below:

• there should be a move to system of sentencing whereby sentencers specify minimum custodial terms after which offenders would be eligible to apply for early release

• the point of early release should be determined by assessments of risk

• there should be no change to the present system as the impact on the prison population

would be detrimental

• there should be no change to the present system in terms of the point of sentence when prisoners become eligible but all early release should be discretionary

• the earliest point of release should be increased (various suggestions were put forward

as to when the earliest point of release should be, ranging from 66% of the sentence to 80% of the sentence)

Determinate and life sentence prisoners Respondents were asked how the early release arrangements for determinate prisoners should compare with the statutory arrangements governing the release of prisoners sentenced to life imprisonment. Some argued that the two groups of prisoners are distinct and that it would be


“unrealistic and draconian” to apply life licence rules to individuals who were neither serious nor persistent offenders. A similar number of respondents were of the view that the same system of early release should apply to both groups of prisoners with a number indicating a preference for applying the system under which life sentence prisoners are released to all determinate sentence prisoners i.e. consideration for release by the Parole Board after serving a minimum period in custody.

THE ADMINISTRATION OF SCHEMES FOR THE EARLY RELEASE OF PRISONERS

Decisions on early release Respondents were asked who should be responsible for deciding, under a discretionary system, whether prisoners should be granted early release. A large majority (70%) of respondents indicated that the Parole Board would be the most appropriate body to make such decisions. A small number of respondents suggested that decisions should be taken by the Parole Board in consultation with other agencies which have responsibility for the management and supervision of offenders (such as the Risk Management Authority and the Scottish Prison Service). Respondents were also asked to comment on the role to be played in the early release of prisoners by the Scottish Executive, the Scottish Parliament, the Scottish Prison Service (SPS), the Risk Management Authority (RMA) and social work agencies. It was suggested that the Executive should be responsible for the provision of the general framework within which early release schemes operate and should also be responsible for the provision of resources including the funding of early release support programmes. One respondent suggested that it is desirable to avoid penal policy becoming overtly political and as such, the primary roles in the provision of early release scheme should be undertaken by operational agencies. The majority of respondents who commented on the Parliament’s role felt that it should be limited to passing the necessary legislation and beyond that should have no role in determining other aspects of early release schemes. Some respondents identified the role of the SPS as being specifically about providing information to the Parole Board to enable them to make decisions on early release, whilst others felt that the role of the SPS went beyond this and should include risk and needs assessments which would feed into reports that are taken into consideration in the early release decision-making process. With regard to the RMA, some respondents did not demonstrate a great deal of knowledge of its precise remit. Some suggested that it would be important to clarify exactly what the RMA’s role is in relation to the other agencies involved in the early release process. It was also suggested that the RMA should be responsible for providing national guidance and advice on methods of assessing risk and managing high risk offenders in the community. Respondents indicated that the primary role of social work agencies is (and should continue to be) the provision of advice and information on prisoners to the Parole Board, enabling the Board to make decisions on early release. It was also noted that the role of the social work agencies includes the provision of supervision, support and management in relation to released prisoners.

Conditions applying on early release The consultation went on to ask what conditions should be applied to those released early on licence and who should be responsible for deciding what those conditions should be. Perhaps


understandably, responses on what conditions should be applied to those released early varied considerably. Some respondents were concerned with particular types of offences and identified specific conditions which should be attached to release licences for different types of offence. However, the majority of respondents expressed views about the purpose of release conditions rather than identifying specific conditions that should be applied to those prisoners who are released. It was suggested that conditions should aim to address offending behaviour and its underlying causes and should always be intended to reduce the risk posed by offenders. It was argued that standard conditions, such as being of good behaviour and keeping the peace, as well as individual conditions specific to an offender’s circumstances should be applied. However some concern was expressed that the imposition of additional conditions could result in larger numbers of offenders being recalled to custody. The vast majority (79%) of respondents who addressed the question of who should be responsible for deciding what the conditions should be, regarded the Parole Board as being the most appropriate body to decide on the conditions of early release. It was noted, however, that while the Parole Board was the most appropriate body, it must take decisions on the basis of advice and information from other agencies involved in the management and assessment of prisoners, in particular, the Scottish Prison Service and the Risk Management Authority.

Supervision following release from custody The consultation asked a number of questions regarding the supervision arrangements for prisoners who are granted early release. Respondents were asked whether all prisoners granted early release should be under supervision. The majority of those who responded indicated that they did not think that all prisoners granted early release should be under supervision and argued that the pressure on resources which would result from supervising all prisoners granted early release made such an approach unrealistic. It was also stated that as many prisoners are low-risk and serving relatively short sentences, that it would be a waste of resources to impose unnecessary supervision on this group. However, a number of respondents stated that all prisoners released early should be supervised. They argued that the transition from prison to reintegration into the community would be enhanced by supervision and that this would aid to reduce re-offending. It was also stated that the supervision of all prisoners on release may prove to be beneficial to victims. Respondents were asked to comment on who should be responsible for supervising prisoners granted early release and a large majority (83%) indicated that criminal justice social work services would be the most appropriate body to supervise those prisoners granted early release. Very few respondents offered any reasons as to why they took this view. The consultation asked respondents to comment on what form and level of supervision should be operated in respect of prisoners granted early release. The responses to this question varied widely with the most common view being that the form and level of supervision should be based on an assessment of the risk posed by the prisoner and should be tailored to minimise that risk. A number of respondents stated that appropriate forms and levels of supervision are already contained in the National Standards for Throughcare (Scottish Executive 2004) which provide a framework for minimum levels of supervision. Several respondents stated that supervision should take whatever form and level is necessary to ensure that the licence conditions imposed by the Parole Board can be adhered to. They



argued that this would also ensure that the public are protected from any risk posed by the prisoner. A number of respondents indicated that they did not think it was possible to specify generic forms and/or levels of supervision as every prisoner and their circumstances are different and therefore supervision should take whatever level and form is most appropriate for each case. However, some respondents did identify specific forms of supervision which should be applied, ranging from electronic tagging, regular attendance at social work services and attendance at group work sessions to address various issues such as anger, low self-esteem, etc.

THE ROLE OF THE SENTENCING JUDGE IN THE EARLY RELEASE OF PRISONERS Respondents were asked to consider whether a sentencing judge should be required to take account of the terms of schemes for the early release of prisoners when determining what sentence to impose on offenders. The responses received to this question were almost evenly divided with just over half of the respondents believing that the sentencing judge should be required to take account of early release schemes in deciding on sentence. The consultation went on to ask whether judges should be required to explain in open court what the sentence being imposed will mean in terms of when an accused may or will be released from prison. The majority of respondents to this question felt that sentencing judges should explain the details of sentences in open court and felt that this would go some way towards ensuring transparency and openness in sentencing which, in turn, would increase public confidence and understanding of sentencing. A number of respondents were not in favour of sentencing judges explaining sentences in open court and argued that:

• the decision on point of release should be determined by behaviour in custody and the offender’s attitude and, therefore, the sentencing judge would not be able to say precisely how long the offender would spend in custody

• the judiciary should not have to explain the effect of policy decisions

• it would be more constructive for sentencers to explain why a custodial sentence is

necessary and what it is intended to achieve

• having to explain the sentence would have the effect of weakening the authority of the court

• the parole system may attract adverse media and victim attention if it had to be explained

in open court Respondents were also asked to consider the role of the sentencing judge in determining whether a prisoner should be released early. The majority of respondents to this question felt that the sentencing judge should either have no role in the decision to release a prisoner early, or that their role should be limited to the current one of providing the Parole Board with a report on the circumstances of the case in all cases resulting in a sentence of four years or more. It was argued that since a sentencing judge would have no knowledge of a prisoner’s progress and circumstances in the period between sentence and consideration for release, that there would be no value in extending the judge’s role.


Of those respondents who felt that the sentencing judge should have a role to play in the decision to release a prisoner early, a number indicated that the sentencer’s role should take the form of specifying the minimum period to be served in custody. It was also suggested that the sentencing judge should have a major role to play in the release decision at the point when the prisoner is considered for early release.

SANCTIONS FOR RE-OFFENDING OR BREACH OF CONDITIONS OF LICENCE Respondents were asked to comment on a number of questions relating to the issue of sanctions for re-offending or breach of conditions of licence. They were asked to consider what should happen to a prisoner granted early release who commits a breach of licence conditions before the expiry of the original sentence. A number of respondents felt that any sanctions imposed should depend on the specific nature of the breach. They also argued that rather than having a fixed sanction, the court or the Parole Board should have discretion to determine what sanction is most appropriate in light of the nature of the breach and also the risk the prisoner poses to the public. Some respondents also emphasised that there should not necessarily be a presumption that a breach of licence conditions will result in a recall to custody. Several respondents argued that any breach of licence conditions represents a breach of trust and that this should be regarded as being sufficiently serious to merit a return to custody. It was also suggested that prisoners who breach their licence conditions should both be returned to custody and have an additional sentence imposed on them. With regard to prisoners who commit further offences while released on licence, it was suggested that re-offending while on licence should be an aggravation so that the offender receives a more severe penalty for the offence because it is aggravated by the fact that he or she was on licence at the time. Respondents were asked to consider whether there should be other statutory sanctions for breach of licence other than recall to custody. It was suggested that the court and/or the Parole Board should be able to exercise discretion over the nature of the sanction for breach and a number of less severe sanctions were put forward including, electronic monitoring, weekend detention, more stringent reporting requirements, fines and an extension of the supervision period. However, a number of respondents suggested that recall to custody is the only effective sanction that released prisoners are likely to pay attention to.

KEY RECOMMENDATIONS The Commission outlined a number of deficiencies in, and criticisms of, the current statutory regime for the early release of prisoners:

• a lack of clarity in how the regime operates

• a regime which is too complicated

• sentences which do not mean what they say

• early release is in many instances automatic and takes place irrespective of the risk to the public from the prisoner re-offending or the prisoner’s behaviour in custody

• the regime focuses on offenders to the exclusion of victims

• no explanation of the practical effect of the sentence is given by the sentencer at the

point of sentencing


• there is a lack of clarity about how the regime contributes to the wider agenda of reducing re-offending

In order to address these deficiencies, the Commission made a number of recommendations and these are summarised below.

General The Commission recommended that when a custodial sentence is imposed the sentencer should explain the effect of the sentence. This would serve to ensure that the offender, the victim, the public, and the media would be in no doubt as to the effect of the sentence. It would be clear what the sentence means in terms of the time to be served in custody and the amount of time which may be served in the community. Where a court does impose a sentence which has a custody part and a community part or the imposition of a period of supervision, the overall sentence should be proportionate to the gravity of the offending. It should be made explicit by statute or otherwise that the term of the custody part imposed by the sentencer should be the minimum period that requires to be served to satisfy the criminal justice requirements of punishment and deterrence and the protection of the public. Any legislation governing a new statutory regime should expressly provide that a sentencer, when having regard to sentences imposed under the previous regime, must also have regard to the rights to early release under that previous regime. There should also be a separate regime for those sentenced to terms of 12 months or less and those sentenced to terms of more than 12 months.

Prisoners sentenced to 12 months or less For prisoners sentenced to 12 months or less, the Commission recommended that they should normally serve, in custody, the full term ordered by the court, but that they should be eligible for conditional release on Home Detention Curfew (“HDC”) after serving not less than one-half of the term. For offenders sentenced to 12 months or less but for whom more robust supervision measures than HDC are required, the Commission recommended that the courts should be given the power to order a period of supervision in addition to the term in custody. This power would be invoked where the court was satisfied that the offender presented a substantial risk of re-offending and causing harm to the public. The Commission recommended that, in assessing that risk, regard should be had to whether the offender:

• is a persistent minor offender with a chaotic lifestyle

• is especially vulnerable and would benefit from the support of a supervising officer in order to lead a law-abiding life

• is a young offender (i.e. a person aged between 16 and 21 years) who requires

supervision on release

Prisoners sentenced to more than 12 months For prisoners sentenced to more than 12 months, the Commission recommended that sentences should be in two parts: a custodial part and a community part. With regard to the custodial part, the court should be required to impose the minimum term that it considers the prisoner requires to serve in custody for the purposes of punishment, deterrence and protection of the public. The community part should normally bear a fixed proportionate relationship to the


custodial part. The Commission also recommended that the court should be given the power to order at the time of sentence a longer community part (subject to a maximum which should be set by statute) in those cases where it considers that there is likely to be, at the end of the normal custodial part, an ongoing risk of re-offending. The Commission went on to say that the court should also have the power to order that there should be no community part or that it should be shorter than the fixed proportion of the custodial part. This would be to accommodate those cases where no period on licence is deemed to be necessary either for the purpose of public protection or for providing support to the offender in his or her resettlement in the community, and those in which only a short period on licence, with or without supervision, is judged to be necessary. The prisoner would only be released on licence at the end of the custodial term if the risk of re-offending and any consequent risk to the public was judged to be acceptable. For those offenders sentenced for a statutory offence, the Commission recommended that the aggregate term of the custodial and community parts of the sentence should not exceed the maximum terms of imprisonment provided for in statute in respect of that offence.

Sheriff’s sentencing powers The Commission recommended that a sheriff’s sentencing powers should be revised so that the maximum custodial part that a sheriff should be able to order when dealing with cases on indictment should be three and a half years. The Commission stated that the maximum community part that a sheriff should be able to impose could be limited to five years.

Recall to custody for breach of licence or Home Detention Curfew The Commission recommended that the power to recall a person to custody for breach of licence or a Home Detention Curfew order should be vested solely in the Scottish Ministers. The Commission went on to recommend that the Parole Board’s function in recall cases should be confined to one of reviewing the justification for the decision to recall and to decide whether or not the person should be immediately re-released.

Return to custody by the courts The Commission argued that there should be no power mirroring that contained in section 16 of the 1993 Act (whereby a court can return a prisoner to custody if they are convicted of another imprisonable offence). The Commission did, however, state that a court could take into account the fact that an offence had been committed during service of the community part of a previous sentence as a factor that justified increasing any custodial sentence for the new offence.

Single terming of sentences The Commission noted that a complication arises in the operation of early release where a prisoner is serving more than one sentence. Section 27(5) of the 1993 Act provides that for sentences imposed on or after 30 September 1998, consecutive terms of imprisonment and terms which are wholly or partly concurrent shall be treated as a “single term” of imprisonment if, in essence:

• the sentences were passed at the same time

• where the sentences were passed at different times, the person has not been released from an earlier sentence


This can sometimes have the effect, referred to as “single terming”, that a second sentence imposed during a period of imprisonment for an earlier offence can be entirely absorbed in the first sentence which may not have been the court’s intention. The Commission recommended that the single terming of sentences should be abolished. The Commission recommended that concurrent and part-concurrent sentences should run in parallel with each other and have their own sentence end dates.

SCOTTISH EXECUTIVE PROPOSALS On 20 June 2006, the Scottish Executive published ‘Release and Post Custody Management of Offenders’ (Scottish Executive 2006) which contained proposals for legislation which would end automatic unconditional early release for prisoners in Scotland and aimed to bring about greater clarity to the sentencing process. The Executive proposed to legislate for the following framework:

• apart from offenders who are sentenced to 15 days or more, a combined structure for managing sentences comprising a period in custody (“the custody part”) and a period on licence in the community (“the community part”). The custody part to be a minimum of 50% of the sentence

• it would be made clear at the time of the sentence that the minimum custody part will be

50% of the total sentence. This will be for the purposes of punishment and deterrence. However, the court would have the power to increase the custody part if required in any particular case up to a maximum of 75% of the total sentence

• offenders would be subject to continuous review during the custody part. Where Scottish

Ministers consider that an offender should not be released at the end of the custody part on grounds of risk, they would refer such cases to the Parole Board with a recommendation that the offender should be kept in custody for longer

• at the end of the custody part, the offender would be on licence for the entire community

part of the sentence. The licence conditions would enable provision for a variable and flexible package of measures including supervision if required and would detail what obligations the offender has to meet. Breach of a licence condition would be taken very seriously and could result in a return to custody. For the first time all offenders would be under some form of restriction for the full sentence

The Executive has stated that the combined sentence is not a new disposal and is a structure which would enable offender management to be tailored to the risk and needs of individual offenders to optimise the chances of enhancing public protection and reducing re-offending. Under the proposals, courts would still retain the same range of punishments at their disposal as they have currently, including community disposals such as community service orders, probation and drug treatment and testing orders. It is proposed that once in prison, offenders will undergo risk assessment and review as part of the sentence management process. Offenders who present as a high risk of re-offending and/or who pose an unacceptable threat to public safety will be referred to the Parole Board by the Scottish Ministers with a recommendation that the custody part of the offender’s sentence should be extended beyond the minimum term set down by the court at time of sentence. The Executive has stated that this process will apply regardless of whether the custody part is the statutory minimum or whether it was increased beyond the 50% minimum at the time of sentence. If the Parole Board supports the recommendation made by the Scottish Ministers, the




offender will be detained in custody beyond the custody part set at the time of sentence. The final decision about release will be taken by the Parole Board.

PROVISIONS OF THE BILL Parts 1 and 2 of the Bill contain provisions relating to custodial sentences. The Policy Memorandum states that these provisions deliver the Scottish Executive’s commitments to end automatic and unconditional early release of offenders and to achieve greater clarity in sentencing. Part 1 of the Bill deals with the Parole Board for Scotland and Part 2 with the confinement, review and release of prisoners, the key elements of which are outlined below.

PART 1: THE PAROLE BOARD FOR SCOTLAND The Parole Board for Scotland (“the Board”) exists under the provisions of the Prisons (Scotland) Act 1989 and the Prisoners and Criminal Proceedings (Scotland) Act 1993. Currently the Board’s main duties are to:

• recommend to Scottish Ministers the time at which determinate sentence prisoners serving 4 years or more should be released on licence. This may occur from the half-way point of sentence until the two thirds point (when they must be released automatically on licence). The Board also imposes conditions on the release licence

• direct that Scottish Ministers release, on life licence, at a point after the expiry of the court

imposed punishment part, a life sentence prisoner if satisfied that it is no longer necessary for the protection of the public to detain the prisoner. The Board also imposes licence conditions

• recommend that Scottish Ministers revoke the licence of any offender and recall him to

custody eg where a licence condition is breached

• direct where continued detention is no longer necessary Scottish Ministers to re-release any offender who has been recalled to custody

• recommend the inclusion, subsequent insertion, variation or cancellation of licence

conditions Under the provisions contained in the Bill, the Board will remain as a Tribunal Non-Departmental Public Body and will continue to discharge its functions under the 1993 Act. However, the Board will also take on some additional functions, with the result that its main duties will be to:

• consider the case of any offender who meets the statutory criteria to be considered for detention beyond the court imposed custody part on grounds of risk of serious harm to the public and direct either that Scottish Ministers continue to detain the offender (on grounds of risk) up to a maximum of 75% of the total sentence or move the offender to the community if the Board considers that the risk test is not met and direct that Scottish Ministers include conditions on the community licence

• as at present, direct that Scottish Ministers release on life licence (with conditions) at a

point after the expiry of the court imposed punishment part, a life sentence prisoner if satisfied that it is no longer necessary for the protection of the public to detain the prisoner


• as at present, consider the case for re-release of a recalled offender and, direct that Scottish Ministers return such offenders to the community on the appropriate terms if the Board considers that continued detention is not necessary for the protection of the public

• as at present, direct that Scottish Ministers set, vary or remove licence conditions in

cases referred to them

• as at present, consider the case of an offender who makes an appeal against a recall a recall to custody following a breach of Home Detention Curfew condition(s)

Section 1(4) of the Bill requires the Board to have regard to the risk management plan when considering the case of a person for whom one has been prepared under section 6(1) of the Criminal Justice (Scotland) Act 2003. Section 6(1) of the 2003 Act requires that a Risk Management Plan be prepared for an offender who is made the subject of an Order for Lifelong Restriction (OLR). OLRs became available to the courts in Scotland in June 2006. The OLR is a sentence for serious sexual and violent offenders and is broadly equivalent to a life sentence insofar as the offender remains on licence for the remainder of his life.

Parole Board Rules Section 2(1) of the Bill provides that the Scottish Ministers may make rules to regulate the Parole Board’s proceedings. Subsection (2) details some of the particular types of provisions which may be included in the rules. Amongst other things there is the power to

• authorise cases to be dealt with, in whole or in part, by a specified number of members of the Board

• enable the Board to require persons, other than the prisoner whose case the Board is

dealing with, to attend a Board hearing, give evidence to the Board or produce documents

• prescribe time limits for the determination of cases and for the performance of other

actions

• specify the matters which may be taken into account by the Board when dealing with cases

With regard to Scottish Ministers having the power to specify the number of members who will deal with cases, the Financial Memorandum to the Bill states that under the new arrangements continued detention will be considered by a Tribunal (similar to current arrangements for life prisoners.) The Parole Board rules will be amended to require the Tribunal to reach a unanimous decision in every case. This effectively means that in future Tribunals will comprise of two members rather than the present situation where Tribunals consist of three members. Section 2(3) of the Bill allows the Parole Board rules to apply the terms of subsections (4) and (5) of section 210 of the Local Government (Scotland) Act 1973. Subsection 210(4) of that Act provides the power to request a person to attend a Board hearing provided that any expenses incurred are paid and provided that the person is entitled to refuse to produce documents or answer questions, on grounds of privilege or confidentiality, if this could have been done were the matter to have been raised in proceedings in a court of law. Subsection 210(5) of the 1973 Act provides that any person who refuses or wilfully alters, suppresses, conceals, destroys or refuses to produce any book or other document which he is required or is liable to be required to produce shall be liable on summary conviction to a fine not exceeding level 1 on the standard


scale (this may be raised to level 2 in the rules). The Bill also provides for a penalty of imprisonment for a term not exceeding three months but this penalty cannot apply when section 210(5) is applied to hearings before the Parole Board by virtue of the Parole Board rules. Schedule 1 of the Bill makes provision for the membership of the Parole Board for Scotland. The Board must consist of no fewer than five members (including a convener) and the membership of the Board must include:

• a lord Commissioner of Justiciary • a registered medical practitioner who is a psychiatrist • a person who the Scottish Ministers consider has knowledge and experience of the

supervision or aftercare of prisoners • a person who the Scottish Ministers consider has knowledge and experience of the

assessment of the likelihood of offenders causing serious harm to members of the public • a person who the Scottish Ministers consider has knowledge and experience of the way

in which and the degree to which offences perpetrated against members of the public affect those persons

PART 2: CONFINEMENT AND RELEASE OF PRISONERS

Combined structure – Custody Part This part of the Bill deals (as appropriate) with the confinement, review and release of prisoners sentenced to:

• less than 15 days

• 15 days or more

• a life sentence For sentences of less than 15 days, the Bill provides that the offender will spend the full period in custody and will be released unconditionally. For sentences of 15 days or more, the Bill makes provision for a combined sentence management approach comprising a period in custody (the custody part) and a period on licence in the community (the community part). The custody part is that part of the sentence which represents an appropriate period to satisfy the requirements for retribution and deterrence. In specifying a custody part the court must ignore any period of confinement which may be necessary for the protection of the public. The courts will set the custody part when passing sentence and the implications of the sentence will be explained fully at the time it is imposed. The statutory minimum for the custody part will be 50% but this can be increased up to a maximum of 75% by the court for “punishment” purposes. (The custody part may also be increased at a later stage following review by the Parole Board on grounds that the offender still poses a risk of serious harm to the public). The custody part can be appealed by both the offender and the Crown (for unduly lenient sentences). The Bill also provides that Scottish Ministers may, by order, vary the minimum sentence length to which the combined structure applies. Matters which the court must take into account prior to increasing the custody part beyond the statutory 50% minimum are:


• the seriousness of the offence, or the offence combined with other offences of which the

person is convicted on the same indictment or complaint as that offence

• any previous convictions of the person

• the timing and nature of a guilty plea During the custody part, the risk of serious harm to the public that an offender may pose will be assessed regularly. The Bill provides that the Scottish Ministers and each local authority must jointly establish arrangements for the assessment and management of the risks posed in the local authority’s area by custody and community prisoners. Risk will be assessed on the basis of up-to-date sentence management information compiled with input from the relevant bodies with responsibility for managing the offender and the sentence. Section 8(1) and (2) of the Bill provides that, before the expiry of the custody part of a prisoner’s sentence, the Scottish Ministers must determine whether a prisoner would, if not confined, be likely to cause serious harm to members of the public. If the assessment shows that there is a likelihood that the offender, if placed in the community at the end of the court imposed custody part, would cause serious harm to the public, the case will be referred to the Parole Board for it to consider the case for continued detention. Section 9 provides that where the Scottish Ministers have assessed that a prisoner need not be referred to the Parole Board under section 8, then he must be released on community licence. (This is subject to section 22 of the Bill which deals with the effect of multiple sentences and which is discussed below.) Where the Scottish Ministers do refer a case, the Parole Board may, in effect, either direct that the offender continues to be kept in custody or direct that the offender moves to the community part of the sentence. If the offender moves to the community part, Scottish Ministers must place the offender on licence for the full period. The Parole Board will direct Scottish Ministers to attach conditions to the offender’s licence that it considers appropriate to the circumstances of the offence and the offender including (where appropriate) supervision by a local authority criminal justice social worker until the end of the sentence. If the Parole Board considers that the offender would be a risk of serious harm, it will not direct that he progresses to the community part and the offender will remain in custody. If there are still more than four months remaining before the maximum 75% of the custody period is reached, the Board will look at the case again. Four months is the minimum period of time in which it is considered that an offender can make a meaningful change to the status of his or her risk. The maximum period between reviews will be two years. Where the offender has less than four months remaining before 75% of the custody part elapses, the Parole Board will not look at the case again, but instead will specify conditions to be attached to the community licence. In these cases, the licences must include a requirement that the offender is supervised by a local authority criminal justice social worker until the end of the sentence. Multiple sentence prisoners are those who are serving, or liable to serve, two or more sentences of imprisonment. Section 22(2) of the Bill provides that a multiple sentence prisoner must not be released before having served any custody only sentence, the custody part of any custody and community sentence, and the punishment part of any life sentence. In other words, all of the compulsory periods of confinement imposed on the prisoner have to be served before the prisoner can be released. Where a multiple sentence prisoner is released on licence, the licence


will be a community one where he is not subject to a life sentence, and otherwise he will be released on a life licence. The Policy Memorandum states that there will be no equivalent of section 16 of the 1993 Act, which provides that where a person commits an imprisonable offence before the expiry of a custodial sentence previously imposed, a court may order the person to serve the balance of the original sentence before beginning to serve any sentence for the new offence. This is because the prisoners concerned will serve the whole of the minimum custodial term (in other words the punitive part of the sentence) in prison and any return to prison thereafter will be because the person has seriously breached the conditions of their licence and in doing so represents an unacceptable risk. However, the Memorandum states that there would be nothing to prevent a court from taking into account the fact that an offence had been committed during service of the community part of a previous sentence when imposing any sentence for the offence under consideration.

Community Part All sentences of 15 days or more will have a community part of at least 25% of the sentence and offenders will be on licence for the entire community part. If an offender moves to the community part at the end of the court imposed custody part, Scottish Ministers will set the licence conditions. If the offender’s case is referred to the Parole Board, it will set the licence conditions. In practice, all offenders with a sentence of six months or more will be subject to a supervision condition attached to their licence and all offenders referred to the Parole Board for it to consider the case for continued detention will also be given a supervision condition when they move to the community part. Licence conditions can be varied during the community part to take account of changes in an offender’s circumstances. The Executive has stated that:

“For large numbers of offenders (particularly those with shorter sentences) it may be enough to require the offender “to be of good behaviour”. At the other end of the spectrum a full package of conditions will be available, such as attending drug or alcohol counselling, restrictions on visiting certain places/locations and undertaking intensive supervision where necessary” (Scottish Executive 2006, page 6, para 25).

Life prisoners As previously mentioned, the provisions for the imprisonment and release on life licence for offenders who are given a life sentence are presently set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993. The Executive does not propose to amend the law as respects the treatment of life sentence prisoners and the provisions are simply re-enacted in the Bill. The measures in the Bill will apply to those given a life sentence for an offence for which the punishment is fixed by law (murder), to those on whom the court imposes a “discretionary” life sentence (for an offence other than murder), to those given an Order for Lifelong Restriction and to children sentenced to detention without limit of time. Section 15 of the Bill sets out the provisions for setting the punishment part of a life sentence. Section 15(2) defines the punishment part as being that part of the sentence which, taking into account certain specified matters, the court considers appropriate to satisfy the requirements for retribution and deterrence. It is only once this period has been served in full that the offender can be released on life licence, but this will only happen following a direction from the Parole Board. Subsection (3) deals with matters which the court must take into account when setting a punishment part for someone with a mandatory life sentence, namely:


• the seriousness of the offence, or the offence combined with other offences of which the person is convicted on the same indictment

• any previous convictions

• where appropriate, the timing of any guilty plea

Subsection (4) deals with relevant matters for those with a discretionary life sentence or an order for lifelong restriction. These are

• The determinate period of imprisonment the court considers would have been appropriate had the court not imposed a discretionary life sentence or an order for lifelong restriction

• the seriousness of the offence, or the offence combined with other offences of which the

person is convicted on the same indictment or complaint as that offence

• any previous conviction of the person

• the timing of a guilty plea On expiry of the court imposed punishment part, the life sentence prisoner will have the right to have his case for continued detention reviewed by the Parole Board. The Board will either direct the Scottish Ministers to release the prisoner on life licence or order his continued detention. Where the Board does not direct release, the case must be reviewed no later than two years after the date of the last review. Life sentence prisoners who are released will remain on licence for their lifetime. The conditions attached to a life licence may be varied to take account of changes in the offender’s circumstances. All life prisoners will be supervised by a local authority criminal justice social worker.

Children convicted on indictment and sentenced to detention Section 208 of the Criminal Procedure (Scotland) Act 1995 provides that where a court sentences a child to detention, Scottish Ministers will direct where the child is to be detained and prescribe the conditions of that detention. The Executive has stated that, wherever possible, children will not be detained in a prison or a Young Offenders Institution. In practice children normally serve the period of detention, up to them reaching 18 years of age, in secure accommodation. Section 41 of the Bill deals with the application of the provisions of Part 2 of the Bill to young offenders and children. Where the sentence on a young person or child is of less than 15 days, Part 2 applies to them as if they were a custody-only prisoner. Where a sentence is of 15 days or more, it applies as if they were a custody and community prisoner. Where the sentence is indeterminate, Part 2 applies as if they were a life prisoner. Section 41(7) provides that references to “imprisonment” in Part 2 are to be read as references to detention. This is because young offenders and children are sentenced to detention and not to imprisonment.

Fine defaulters and persons in contempt of court Section 42 of the Bill provides that those offenders sentenced for non-payment of fines or for contempt of court (known as non-offence terms) will serve the full sentence in custody regardless of the length of the period of custody imposed on such a person. Subsection (3) states that this section will only apply where the relevant act which leads to imprisonment or detention occurs after the coming into force of Part 2 of the Bill.


Community licences Section 24 of the Bill provides that where an offender has been released on a community licence on the Parole Board’s direction, the Parole Board will specify the conditions which are to be included on the licence and the Scottish Ministers must include these conditions (and no others) in the community licence. The Scottish Ministers may vary or cancel the conditions or include further conditions if so directed by the Parole Board, but not otherwise. Section 25 of the Bill provides that the Scottish Ministers can include such conditions as they consider appropriate in the case of a prisoner being released on community licence either on the expiry of the custody part (in a case where the Scottish Ministers released the prisoner without referring the case to the Parole Board) or as a result of being granted compassionate release. They may also vary or cancel conditions or include such further conditions as they consider appropriate. The Bill provides that when exercising such powers the Scottish Ministers must co-operate with the appropriate local authority.

Breaches of community licence Under the 1993 Act, Scottish Ministers and the Parole Board can revoke an offender’s licence and order a return to custody for breaches of condition(s) if satisfied that this is necessary for the protection of the public. The Bill separates this function by giving Scottish Ministers alone this power. The Executive has stated that this measure, which was supported by the Sentencing Commission for Scotland, will result in a more transparent, effective and swifter recall system. An offender will be told the reasons for their recall and Scottish Ministers must refer the case to the Parole Board for it to consider the case for an offender’s continued detention. Before directing an offender’s return to the community on licence, the Board must be satisfied that it is no longer necessary for the purpose of public protection to continue to detain the offender. If the Parole Board considers it is not necessary to detain the recalled offender it will direct Scottish Ministers to return the offender to the community, on licence, immediately. Unless revoked again, the offender’s licence will be in place until the end of the sentence. When directing that an offender be returned to the community, the Parole Board will direct the conditions to be attached to the offender’s licence.

Life licences Where the Parole Board specifies the conditions to be included in a prisoner’s life licence, the Scottish Ministers must include these conditions (and no others) in the life licence. If so directed by the Parole Board, the Scottish Ministers may vary or cancel the conditions or include further conditions, but not otherwise.

Single licence The Bill makes provision at section 35 for multiple licences to be replaced by a single licence. Subsection (1) provides that this section applies to offenders who have been released on licence under Part 2 of the Bill and who have received another sentence of imprisonment while that licence remains in force. Section 35(2) provides that, if the original licence is still in force at the time when the prisoner is to be released on licence from the subsequent sentence, then he is to be released on a single licence covering both sentences. Subsection (3) provides that the single licence replaces the original one while subsection (4) requires that the single licence is to include all the conditions from the previous licence.


Subsection (5) provides that the new single licence will remain in force, unless revoked, until all licences which would otherwise have been imposed would have expired. Subsection (6) provides that in the case of a prisoner being released unconditionally from a subsequent sentence the licence from the original sentence will remain in place, unless revoked, in the same way as it would have done had the subsequent sentence not been imposed.

Curfew licences The Bill makes provision for Scottish Ministers to release, on licence, a custody and community prisoner during the custody part. This power may be used in relation to a prisoner who is serving a sentence of three months or more and is of a description to be specified by order by the Ministers. Section 36(3) provides that the licence must contain a curfew condition which requires a person to remain at the place specified in the condition for the periods which are specified. Section 37(2) provides that it may require the person not to be in a particular place, or class of place at a specified time or during a specified period. Scottish Ministers may include in a curfew licence any other conditions that they consider to be appropriate. The curfew licence will remain in force until the expiry of the custody part of the sentence. In determining whether to release a prisoner on a curfew licence Scottish Ministers must have regard to the need to protect the public, prevent re-offending and secure the successful reintegration of the prisoner into the community.

Compassionate release on licence Section 23 of the Bill provides that where Scottish Ministers are satisfied that there are compassionate grounds justifying the release on licence of a person, the Scottish Ministers may release the person on licence. Before releasing a custody and community prisoner or a life prisoner on compassionate grounds the Scottish Ministers must consult the Parole Board.

Persons detained under mental health provisions Section 40 provides that Part 2 of the Bill applies to the following categories of prisoner as if they had continued to serve their sentence in prison rather than in a hospital:

• those transferred to hospital under a transfer direction made in accordance with section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 and

• those conveyed to and detained in a hospital for treatment of a mental disorder in

accordance with section 59A of the Criminal Procedure (Scotland) Act 1995

Supervision Section 27 of the Bill provides that where a prisoner (other than a person liable to removal from the United Kingdom) is

• a life prisoner • a custody and community prisoner with a sentence of six months or more • a prisoner who is detained in custody beyond the court imposed custody part • a prisoner released on compassionate grounds • an extended sentence prisoner • a sex offender • a child


the Scottish Ministers must include a supervision condition on the licence. Section 27(3) states that a supervision condition is a condition requiring the offender to be supervised by an officer of the local authority specified in the licence, and to comply with any of that officer’s requirements in relation to supervision.

COSTS The Financial Memorandum states that the changes which the Bill makes with regard to the confinement, review and release of prisoners in Scotland will have cost implications for the Scottish Prison Service (SPS), local authorities (in terms of criminal justice social work), the police, the courts and the Parole Board for Scotland. A brief analysis of some of the cost implications is set out below. With regard to sentencing, it is envisaged that the new arrangements could potentially lead to an increase in the number of appeals against sentences. Any increase is likely to include those offenders who are given more than the 50% minimum custody part. The Scottish Court Service has indicated that it is confident that a small increase in numbers should be capable of being absorbed within existing resources although it is not possible to predict how many appeals against sentence will arise as a result of the new procedures. (Scottish Executive 2006) The Financial Memorandum also points out that the Bill requires assessment of risk of harm to apply to all those offenders sentenced to 15 days or more and that the Integrated Case Management (ICM) system developed by the SPS would need to be adapted to apply to all those offenders whose sentence will be managed through custody and community. The ICM currently applies only to offenders subject to post-release supervision, i.e. those sentenced to four years or more, sex offenders sentenced to six months or more, offenders on extended sentences and offenders serving life sentences – in total around 3,000 a year. The system provides for the compilation of information relating to offending track record, risk and needs of each offender, assessment, initial interviews with each prisoner, social work input and integrated case conferences for each offender. The proposals in the Bill will require a similar system to apply to all those whose sentence will be managed through custody and community. An analysis of the current ICM costs shows that each 1,000 extra offenders receiving ICM requires 18-19 staff and associated costs. The cost per 1,000 prisoners is estimated at £560,000 a year. SPS estimate the costs from these proposals to be £5-6million a year. (Scottish Executive 2006) The Financial Memorandum states that no additional costs will have to be met by local authorities. While criminal justice social work is delivered by local authorities, they would not require to incur any additional costs from within their overall budgets since the Scottish Executive will fully reimburse the community justice authorities the cost of the community component of the new arrangements.


SOURCES COSLA Early Release from Prison and Supervision of Prisoners on their Release: Consultation Responses. Edinburgh: Sentencing Commission for Scotland. Available at: http://www.scottishsentencingcommission.gov.uk/publications.asp Custodial Sentences and Weapons (Scotland) Bill [as introduced] Session 2 (2006). SP Bill 80. Edinburgh: Scottish Parliament. Available at: http://www.scottish.parliament.uk/business/bills/80-custsentwea/b80s2-introd.pdf Custodial Sentences and Weapons (Scotland) Bill: Explanatory Notes (and other accompanying documents) Session 2 (2006). SP Bill 80-EN. Edinburgh: Scottish Parliament. Available at: http:www.scottish.parliament.uk/business/bills/80-custsentwea/b80s2-introd-en.pdf Custodial Sentences and Weapons (Scotland) Bill: Policy Memorandum Session 2 (2006). SP Bill 80-PM. Edinburgh: Scottish parliament. Available at: http://www.scottish.parliament.uk/business/bills/80-custsentwea/b80s2-introd-pm.pdf Scottish Executive. (2003) A Partnership for a Better Scotland: Partnership Agreement. Edinburgh: Scottish Executive. Available at: http://www.scotland.gov.uk/Publications/2003/05/17150/21952 Scottish Executive. (2004) National Objectives for Social Work Services in the Criminal Justice System: Standards Throughcare. Edinburgh: Scottish Executive. Available at: http://www.scotland.gov.uk/Publications/2004/12/20473/49294 Scottish Executive. (2006) Release and Post Custody Management of Offenders. Edinburgh: Scottish Executive. Available at: http://www.scotland.gov.uk/Publications/2006/06/20120843/0 Sentencing Commission for Scotland. (2005) Early Release from Prison and Supervision of Prisoners on their Release. Edinburgh: Sentencing Commission for Scotland. Available at: http://www.scottishsentencingcommission.gov.uk/publications.asp


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CUSTODIAL SENTENCES AND WEAPONS (SCOTLAND) BILL: WEAPONS

FRAZER MCCALLUM

The Scottish Executive’s Minister for Justice introduced the Custodial Sentences and Weapons (Scotland) Bill in the Parliament on 2 October 2006. The Parliament’s Justice 2 Committee has been designated as lead committee for parliamentary consideration of the Bill. This briefing considers the provisions on weapons set out in Part 3 of the Bill. It also sets out background information on crimes involving knives and offensive weapons, the current law in this area and the development of proposals for changes to the law. A separate SPICe briefing looks at the provisions on custodial sentences set out in Parts 1 and 2 of the Bill.

SPICe briefing 19 October 2006 06/79

Scottish Parliament Information Centre (SPICe) Briefings are compiled for the benefit of the Members of the Parliament and their personal staff. Authors are available to discuss the contents of these papers with MSPs and their staff who should contact Frazer McCallum on extension 85189 or email [email protected]. Members of the public or external organisations may comment on this briefing by emailing us at [email protected]. However, researchers are unable to enter into personal discussion in relation to SPICe Briefing Papers. If you have any general questions about the work of the Parliament you can email the Parliament’s Public Information Service at [email protected]. Every effort is made to ensure that the information contained in SPICe briefings is correct at the time of publication. Readers should be aware however that briefings are not necessarily updated or otherwise amended to reflect subsequent changes.

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CONTENTS KEY POINTS OF THIS BRIEFING...............................................................................................................................3

INTRODUCTION ..........................................................................................................................................................4

BACKGROUND............................................................................................................................................................4 CRIMES INVOLVING KNIVES AND OFFENSIVE WEAPONS ..................................................................................................4 CURRENT LAW AND PROPOSALS FOR CHANGE ..............................................................................................................7 OTHER INITIATIVES TO DEAL WITH KNIFE CRIME.............................................................................................................8

‘TACKLING KNIFE CRIME: A CONSULTATION’ ......................................................................................................9 LICENSING SCHEME FOR THE SALE OF NON-DOMESTIC KNIVES.....................................................................................10

Proposals ...........................................................................................................................................................10 Responses – requiring sellers to hold a licence ................................................................................................11 Responses – licence conditions.........................................................................................................................12 Responses – costs for businesses ....................................................................................................................13 Responses – offence of purchasing a non-domestic knife from an unlicensed seller .......................................13

RESTRICTING THE SALE OF SWORDS ..........................................................................................................................14 Proposals ...........................................................................................................................................................14 Responses – including swords in a licensing scheme for non-domestic knives................................................14 Responses – restricting the sale of swords to members of approved organisations.........................................15 Responses – prohibiting the sale of swords (or of certain types of sword) .......................................................15 Responses – requiring any person wishing to buy a sword to have a personal licence ...................................16

PROVISIONS OF THE BILL ......................................................................................................................................16 LICENSING SCHEME FOR THE SALE OF NON-DOMESTIC KNIVES AND SWORDS ................................................................16

Scope of the licensing scheme ..........................................................................................................................17 Licence conditions..............................................................................................................................................18 Offences.............................................................................................................................................................19 Enforcement.......................................................................................................................................................19

RESTRICTING THE SALE OF SWORDS ..........................................................................................................................20 COSTS .....................................................................................................................................................................21

Businesses.........................................................................................................................................................21 Scottish administration .......................................................................................................................................21 Local authorities .................................................................................................................................................22

SOURCES ..................................................................................................................................................................22


KEY POINTS OF THIS BRIEFING

• In November 2004, the First Minister announced a five-point plan to help tackle the problem of knife crime. The plan involved:

1. doubling the sentence for possession of a knife in a public place from two to four years 2. ensuring that the police make more use of stop and search powers and that they have

the power of arrest on suspicion of carrying knives or offensive weapons 3. increasing the minimum age for the purchase of knives from 16 to 18 4. a licensing scheme for the sale of non-domestic knives 5. banning the sale of swords

• Legislative provisions relating to the first three elements of the five-point plan are now set

out in sections 73 to 75 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (and came into force on 1 September 2006)

• Options in relation to the final two elements of the five-point plan were set out in the

Scottish Executive consultation paper ‘Tackling Knife Crime: a Consultation’ (published June 2005)

• Provisions taking forward some of the options in the above consultation are set out in

Part 3 of the Custodial Sentences and Weapons (Scotland) Bill (‘the Bill’)

• Licensing scheme for the sale of non-domestic knives and swords – the Bill would require retailers in Scotland to obtain a knife dealer’s licence from a local authority if they want to sell such items. A private individual selling a non-domestic knife or sword would not require a licence where the sale is not part of any business carried on by that individual

• Various conditions would be attached to any knife dealer’s licence. The Scottish

Executive has indicated that it will set (by statutory instrument) a number of minimum conditions for any knife dealer’s licence and that these may be added to by local authorities

• Further restrictions on the sale of swords – the Bill would allow the Scottish Ministers (by

statutory instrument) to modify existing legislation to set out exceptions for specified legitimate purposes when adding swords to lists of weapons which cannot be sold

• The Scottish Executive has indicated that legitimate uses for swords (in relation to which

sale would be allowed under the Executive’s proposals) include: 1. antique collecting 2. fencing 3. film, television and theatre 4. martial arts 5. re-enactment 6. religion 7. highland dancing


INTRODUCTION The Custodial Sentences and Weapons (Scotland) Bill (‘the Bill’) was, together with Explanatory Notes (and other accompanying documents) (references in this briefing are to the ‘Explanatory Notes’) and a Policy Memorandum, introduced in the Parliament on 2 October 2006. This briefing considers the provisions on weapons, dealing mainly with non-domestic knives and swords, set out in Part 3 of the Bill. The Policy Memorandum states that:

“The objective of this part of the Bill is to put in place safeguards which will help to prevent these potentially dangerous weapons falling into the wrong hands. The Bill therefore provides for the introduction of new restrictions on the sale of non-domestic knives and swords. These provisions are part of the Executive’s reform of knife crime law and are a vital component of a wider package of measures designed to tackle knife crime and violence more generally.” (para 4)

This briefing also sets out background information on crimes involving knives and offensive weapons, the current law in this area and the development of proposals for changes to the law A separate SPICe briefing looks at the provisions on custodial sentences set out in Parts 1 and 2 of the Bill.

BACKGROUND

CRIMES INVOLVING KNIVES AND OFFENSIVE WEAPONS Concern about the level of knife crime in Scotland (including concern about particularly high levels of knife crime in some parts of the country) has been a feature of much of the debate in this area and a driver behind various legislative and non-legislative initiatives. However, as with much crime, the actual incidence of offences is not always straightforward to measure. This section considers some of the figures relating to knife crime. The Scottish Executive stated in 2005 that:

“Every year in Scotland, far too many people are badly injured and killed by knives. In 2004, Scotland had the 4th highest incidence of death by violence in the European Union. Year upon year, murder statistics show that knives and other sharp items continue to be the most common method of killing in this country, consistently accounting for around half of all murders each year. These continuing high levels of knife crime represent an ugly and destructive aspect of our society and are totally unacceptable. The statistics reflect a far too common view amongst some, that carrying and using knives is a way of displaying strength and gaining respect. And increasingly, the police are reporting the carrying and concealment of fixed blades, lock knives, and other bladed weapons, mainly by young men, particularly in Glasgow and the west of Scotland.” (Scottish Executive 2005a, paras 1-2)

Knives (and other weapons) may be used in a variety of offences including robbery and assault. It has not been general practice to collate and publish statistics for all such offences which


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separately identify the use of a knife in the offence. The Policy Memorandum published along with the Bill does, however, include some information relating to Strathclyde:

“an analysis of data for Strathclyde indicates that there were 1,301 knife attacks in 2004/05. Of these, 1,100 were in a public place and involved the use of a non-domestic knife.” (para 61)

In relation to the use of swords, the Policy Memorandum states that:

“As national statistics do not collect information on weapon types, the available data does not identify sword use. However, swords are designed as deadly weapons, are likely to result in serious injury if used, and reports from the police and from hospitals make clear that swords are being used to commit crimes and to inflict injury. Indeed, advice from the police is that the use of swords is becoming more common, with ‘samurai’ swords in particular becoming a weapon of choice for growing numbers of young men with criminal intentions.” (para 62)

Statistical information is published on offences concerned with the possession of an offensive weapon or possession of a knife (or similar) in a public place or on school premises (see sections 47, 49 and 49A of the Criminal Law (Consolidation) (Scotland) Act 1995).1 Relevant figures are set out in Tables 1a and 1b below (the figures only record those cases where one of the stated offences was the main offence). Table 1a: Persons with a charge proved by police force area, 2004/2005

Police Force Area Possession of an Offensive Weapon2

Possession of a Knife3

Total

Central 55 40 95Dumfries & Galloway 20 28 48Fife 21 23 44Grampian 86 59 145Lothian & Borders 140 201 341Northern 34 22 56Strathclyde 1,294 1,256 2,550Tayside 90 74 164Scotland 1,740 1,703 3,443Source: Scottish Executive answer to parliamentary question S2W-26699 (Scottish Parliament 2006) Table 1b: Persons with a charge proved by year, 1999/2000 – 2004/2005

Year Possession of an Offensive Weapon

Possession of a Knife

Total

1999/2000 1,103 1,015 2,1182000/2001 1,208 1,132 2,3402001/2002 1,385 1,247 2,6322002/2003 1,405 1,365 2,7702003/2004 1,468 1,404 2,8722004/2005 1,740 1,703 3,443Source: Scottish Executive answer to parliamentary question S2W-26699 (Scottish Parliament 2006)

1 For the purposes of these provisions, an offensive weapon is defined as “any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person” (section 47(4) of the Criminal Law (Consolidation) (Scotland) Act 1995). Although a knife could, depending on the particular circumstances, fall within the definition of an offensive weapon, separate provision is made for knives. 2 Offences under section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995. 3 Offences under sections 49 and 49A of the Criminal Law (Consolidation) (Scotland) Act 1995.


Information is also available on homicide convictions broken down by the method of homicide (eg ‘shooting’, ‘sharp instrument’ or ‘hitting and kicking’). Tables 2a and 2b set out some figures for homicides involving sharp instruments. Table 2a: Convictions by police force area, 2004/2005

Table 2b: Convictions by year, 1999/2000 – 2004/2005

Homicides involving sharp instruments Homicides involving sharp instruments Police Force Area Persons Convicted Year Persons Convicted

Central 3 1999/2000 65Dumfries & Galloway 2 2000/2001 43Fife 2 2001/2002 56Grampian 3 2002/2003 62Lothian & Borders 5 2003/2004 56Northern 0 2004/2005 62Strathclyde 47Tayside 0Scotland 62Source: Scottish Executive answer to parliamentary question S2W-26699 (Scottish Parliament 2006) The above figures provide only a limited picture of the scale of the problem. Firstly, because the offences for which national figures are available do not cover the full range of criminal activities where a knife or other weapon might be involved. Secondly, because offences occur without police knowledge and/or without successful prosecutions. In relation to the second point, it should be noted that significant levels of certain types of offending (eg possession of a knife in a public place) are likely to take place without coming to the attention of the police. As a result, both police recorded crime figures and prosecution figures are limited in relation to the actual levels of such offending. Changes over time in recorded crime and prosecution figures may reflect changes in the real level of offending. However, they may also reflect other factors such as changes in policing priorities or changes in the willingness of people to report offending behaviour. In evidence to the Justice 2 Committee (during consideration of the Police, Public Order and Criminal Justice (Scotland) Bill) Detective Chief Superintendent Carnochan stated that:

“I have been talking about recorded crime, but others may speak about the phenomenal difference between recorded crime, particularly violence, and actual crime or violence. (…) There is little incentive to report violence if a person lives in an area in which it has become the norm or is legitimised. As a result, it is not reported. Young men do not report it because reporting it is not the thing to do and women do not report it because it has happened at home. Therefore, the level of violence will be much higher than the level that we have recorded.” (Scottish Parliament Justice 2 Committee 2005, col 1847)

He went on to note (at col 1851) that the police estimate that they record just over a third of the violent incidents that turn up in accident and emergency departments. Research published in the ‘Journal of Public Health’ (Leyland 2006) highlights a large increase, principally in the 1980s and early 1990s, in the homicide rates in Scotland for male victims aged between 15 and 34. It states that this increase was attributable to a 213% increase in homicides involving a knife. It goes on to state that:

“Homicide rates in Scotland have increased considerably over the past 20 years, particularly amongst young men, with the increase largely attributable to


homicides involving knives. Although homicide rates in Glasgow have increased at a slower pace than in the rest of Scotland, this increase has been from a higher base and in 2002 rates in Glasgow (14.01 per 100,000) were nearly three times those in Scotland as a whole (5.38). This phenomenon is not a feature of cities; Aberdeen, Dundee and Edinburgh all have below average homicide rates. It is likely that the higher rate in Glasgow is linked to the deprivation of the city, although the slower increase in homicide in Glasgow is contrary to recent findings for deprived areas in Britain.” (Leyland 2006, p 146)

Further statistical information on homicides is set out in the Scottish Executive statistical bulletin ‘Homicide in Scotland, 2004/05’ (2005b). For an analysis of available evidence on the level of knife crime, focussing on the position in England and Wales, see ‘Knife Crime: Ineffective Reactions to a Distracting Problem? – A Review of Evidence and Policy’ (Eades 2006).

CURRENT LAW AND PROPOSALS FOR CHANGE The use of a knife or offensive weapon in an attack is, for example, treated as a serious aggravation of the common law offence of assault. In addition to the common law, various pieces of legislation place restrictions on knives and offensive weapons. For example:4

• the Restriction of Offensive Weapons Act 1959 – includes a prohibition on the sale of flick-knives

• the Criminal Justice Act 1988 – includes a prohibition on the sale of specified offensive weapons (eg butterfly knives)

• the Criminal Law (Consolidation) (Scotland) Act 1995 – prohibits the carrying of knives (excluding folding pocket knives where the cutting edge of the blade does not exceed three inches/7.62 centimetres) and offensive weapons in a public place or in schools without lawful authority or good reason/reasonable excuse

• the Offensive Weapons Act 1996 – amended the 1988 Act to prohibit the sale of knives to anyone under 16 (further amended by the Police, Public Order and Criminal Justice (Scotland) Act 2006 – see below)5

• the Knives Act 1997 – prohibits the marketing of a knife in a way which indicates that it is suitable for combat

The partnership agreement published by the Scottish Labour Party and Scottish Liberal Democrats in May 2003 (‘A Partnership for a Better Scotland’) included a commitment to review the law relating to knife crime and its enforcement. Subsequent to this review, the Executive has stated that the law in this area is “generally comprehensive, robust and flexible” (Scottish Executive 2005c, para 3.11). However, it went on to note that the review had identified a number of areas for improvement. In November 2004, the First Minister announced a five-point plan to help tackle the problem of knife crime (Scottish Executive 2004). The plan involved:

1. doubling the sentence for possession of a knife in a public place from two to four years 2. ensuring that the police make more use of stop and search powers and that they have

the power of arrest on suspicion of carrying knives or offensive weapons

4 Further information is set out in Scottish Executive 2005a, Annex A. 5 For information, collected by trading standards services in England and Wales, on shops selling knives illegally to children under 16 see ‘Children Still Sold Knives’ (Trading Standards Institute 2006).


http://www.kcl.ac.uk/depsta/rel/ccjs/knife-crime-2006.pdf



http://www.tsi.org.uk/media/index.htm?frmClient=4E097775-1185-6B25-FC4594F953663717&frmItemID=182193&frmShared=1


3. increasing the minimum age for the purchase of knives from 16 to 18 4. a licensing scheme for the sale of non-domestic knives 5. banning the sale of swords

The Scottish Executive’s consultation paper ‘Supporting Police, Protecting Communities: Proposals for Legislation’ (2005c) noted that all of these measures, apart from the increased use of stop and search powers, would require legislation. The consultation paper sought views on legislative proposals aimed at implementing the first three elements of the five-point plan. Following this consultation, relevant provisions were included in the Police, Public Order and Criminal Justice (Scotland) Bill. This Bill was introduced in the Parliament in September 2005 and passed in May 2006. It received Royal Assent on 4 July 2006, becoming the Police, Public Order and Criminal Justice (Scotland) Act 2006. Sections 73 to 75 of the Act (which were brought into force on 1 September 2006):6

• increase various maximum penalties for carrying a knife (under both summary and solemn procedures)

• remove certain limitations on statutory powers, relating to offences of carrying a knife or offensive weapon, which allow a police officer to arrest a person without a warrant

• amend provisions which previously prohibited the sale of knives (and certain other sharp instruments such as axes) to anyone under the age of 16 – still allowing the sale of any knife or knife blade designed for domestic use to a person aged 16 or over but increasing the age to 18 for all other knives and making it clear that swords are included in the prohibition

The Scottish Executive’s proposals in relation to the final two elements of the five-point plan were set out in a second consultation paper ‘Tackling Knife Crime: a Consultation’ (2005a) (considered later in this briefing). Provisions taking forward some of these proposals are set out in Part 3 of the current Bill.

OTHER INITIATIVES TO DEAL WITH KNIFE CRIME It is clear that legal changes cannot by themselves adequately deal with the problem of knife crime and that social problems associated with violence must also be tackled. The Ministerial Foreword to ‘Tackling Knife Crime: a Consultation’ (Scottish Executive 2005a) stated, in relation to knife crime, that:

“Of course, criminal laws are just one way of addressing this problem – and will never provide us with the whole solution. That is why (…) we are working with the police and other agencies, to explore the root causes of this behaviour; to identify preventative measures which can reduce the likelihood of violence; and to develop early interventions, which can help to break cycles of violence and brutality.”

Others have gone somewhat further in emphasising the importance of the context as opposed to the potential weapon itself. For example:

“The knife is merely an implement used in crime. Without dealing with the underlying causes of violent crime, initiatives to reduce knife usage will have

6 See the Police, Public Order and Criminal Justice Scotland Act 2006 (Commencement No 1) Order 2006 for information on all provisions brought into force on 1 September 2006.

http://www.scotland.gov.uk/consultations/justice/sppcpl-00.asp



http://www.opsi.gov.uk/legislation/scotland/ssi2006/20060432.htm


only a limited impact. Knives – like guns, baseball bats, screwdrivers and poison – make an expression of violence potentially more damaging or lethal, even if unintended to cause death, but ultimately, stabbings are not caused merely by the presence of a knife. More essential is the context within which the resort to extreme acts of violence unfolds.” (Eades 2006, p 34)

Non-legislative initiatives in Scotland aimed at tackling problems associated with knives, and with violent crime more generally, include:

• Action on Violence in Scotland – intended to provide a resource for people working on violence reduction, with information on initiatives, key documents, etc

• Violence Reduction Unit – established in 2005 and based at Strathclyde Police Force Headquarters. Although the unit was set up to deal with all forms of violence, tackling the problem of knife crime was identified as a priority. The Unit is headed by Detective Chief Superintendent John Carnochan and works with relevant people in various fields, including social workers, health experts and academics. The publication ‘Reducing Violence: An Alliance for a Safer Future’ (Violence Reduction Unit 2006) includes information on the work carried out by the Unit

• knife amnesty – a national amnesty aimed at encouraging people to surrender knives and offensive weapons ran from late May to the end of June 2006. Information about the amnesty is set out in the following press releases: ‘Knife amnesty to get blades off the streets’ (Scottish Executive 2006a); and ‘Amnesty Ends – Final Tally’ (Action on Violence in Scotland 2006)7

• prosecution policy in relation to knife crime – the Lord Advocate has issued new guidance to the police and prosecutors, effective from the conclusion of the above mentioned knife amnesty, in relation to the prosecution of knife crime. It covers matters such as the prosecution’s position on bail (eg that the prosecution will oppose bail where an accused has one or more previous convictions involving possession or use of a knife) and whether or not cases should be prosecuted under summary or solemn procedures. Further information is set out in the Scottish Executive press release ‘New guidelines on knife crime’ (2006b)

‘TACKLING KNIFE CRIME: A CONSULTATION’ In its consultation paper ‘Tackling Knife Crime: a Consultation’ (‘the Consultation Paper’) the Scottish Executive (2005a) sought views on proposals relating to: (a) a licensing scheme for the sale of non-domestic knives; and (b) restricting the sale of swords.8 Information about the responses, together with the responses themselves, was published by the Scottish Executive (2006c) earlier this year in ‘Tackling Knife Crime: a Consultation – responses from organisations and individuals and analysis of responses’ (‘the Consultation Analysis’). Although responses to the consultation were originally sought by 30 September 2005, this deadline was formally extended by four weeks and the Consultation Analysis includes all responses received before the end of 2005. A total of 178 responses were received by this

7 Evidence for the effectiveness of knife amnesties is questioned in ‘Knife Crime: Ineffective Reactions to a Distracting Problem? – A Review of Evidence and Policy’ (Eades 2006, pp 27-28). 8 The Consultation Paper (para 20) makes it clear that references to ‘knives’ should be taken to include similar articles with a blade or point.

http://www.actiononviolence.com/aov/aov_display_home.jsp?p_applic=CCC&p_service=Content.show&pContentID=21&

http://www.strathclyde.police.uk/index.asp?locID=808&docID=-1

http://www.actiononviolence.com/aov/files/rvasf.pdf


http://www.scotland.gov.uk/News/Releases/2006/05/23100724


http://www.actiononviolence.com/aov/files/Amnesty Ends - Final Tally.doc









time.9 Of these, 110 responses were from individuals and 68 from groups (including local authorities and organisations representing the police and lawyers). Many of the responses were from individuals or groups with a particular interest in selling or using knives or swords (sporting, cultural, religious and trade interests). The Consultation Analysis noted that:

• the Scottish Executive also received three MSP sponsored petitions, with a total of 2,284 signatures, supporting the full implementation of the five-point plan to help tackle the problem of knife crime as announced by the First Minister in November 2004 – the plan included proposals to introduce a licensing scheme for the sale of non-domestic knives and ban the sale of swords

• the Scottish Parliament’s Public Petitions Committee received a petition (PE 893) with 2,019 signatures calling upon the Parliament “to oppose the introduction of any ban on the sale or possession of swords in Scotland which are used for legitimate historical, cultural, artistic, sporting, economic and religious purposes”

The Scottish Executive’s consultation proposals and responses to those proposals, other than the above petitions, are considered below.

LICENSING SCHEME FOR THE SALE OF NON-DOMESTIC KNIVES

Proposals The Scottish Executive proposed that any retailer wishing to sell non-domestic knives should be required to obtain, from the local authority, a licence authorising such sales. Sale without a licence, or in breach of the terms of a licence, would be a criminal offence. The Consultation Paper (para 26) included for discussion some possible terms of any licence:

• requiring retailers to keep records of those to whom they sell non-domestic knives • requiring retailers to obtain photographic evidence of a purchaser’s identity • regulating the display of knives on licensed premises (eg blacked out windows and locked

cases) • requiring a ‘cooling off’ period between any initial approach to purchase and the

completion of a sale • requiring retailers to obtain a statement from, for example, a Justice of the Peace, Member

of Parliament or other professional person, confirming the purchaser’s identity • requiring retailers to record transactions on CCTV • requiring retailers to record descriptions of knives sold • requiring means to identify merchandise sold by particular retailers (eg identification

numbers on knives) Any sales in breach of the licensing scheme described above would expose the retailer to the possibility of criminal sanctions. A further proposal contained in the Consultation Paper would make it an offence to buy a non-domestic knife from an unlicensed seller – thus exposing the

9 The 178 responses do not include three nil responses. Not all consultation questions were (clearly) addressed by every respondent.

http://www.scottish.parliament.uk/business/petitions/docs/PE893.htm


purchaser to the possibility of criminal sanctions. The Consultation Paper stated that this additional proposal might be best considered following the introduction of a licensing scheme. The proposals for a licensing scheme are directed at ‘non-domestic’ knives. The Consultation Paper noted that most people regularly use knives in the home in a responsible manner, and stated that the licensing scheme proposals are only intended to apply to knives which do not have a clear and unambiguous domestic purpose (eg for the preparation or consumption of food or for DIY tasks). The following definition of a non-domestic knife was put forward in the Consultation Paper:

“a knife which has a blade or sharp point, and which is not designed only for domestic use, or only for use in the processing, preparation or consumption of food”. (Scottish Executive 2005a, para 18)

The inclusion of the word ‘only’ in the definition suggests that any knives which may be said to be designed for both domestic and non-domestic use (eg for a sport or trade) might be covered by the proposed restrictions.

Responses – requiring sellers to hold a licence The Consultation Analysis noted that the proposal to require a licence to sell non-domestic knives met with a mixed response. It stated that, out of 110 clear responses to the question, 57 generally agreed and 53 disagreed with the proposal. Responses generally in favour of the proposal included ones from the Association of Chief Police Officers in Scotland (ACPOS) and the Association of Scottish Police Superintendents (ASPS). Responses generally opposed to the proposal included ones from COSLA, the Faculty of Advocates and the Scottish Retail Consortium. Issues highlighted in relation to the proposal included:

• the need to minimise any negative impact on legitimate sellers and purchasers of non-domestic knives (eg some respondents argued that non-domestic knives used for legitimate commercial purposes should be exempt)

• the effectiveness of any controls which only apply to the sale of non-domestic knives. Although some respondents thought that the proposed licensing scheme could have an impact on knife crime, others questioned whether there is evidence to show that non-domestic knives are any more dangerous than domestic knives

• the practicality of producing a definition which adequately distinguishes between domestic and non-domestic knives. It may be noted that section 75 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 contains provisions which apply differently to knives designed for domestic and non-domestic use, but does not seek to provide the courts with further guidance on how they should distinguish between the two

• the different circumstances under which knives are sold. Questions were raised in relation to how a licensing scheme would apply to different circumstances under which knives might be sold or acquired (eg how it would apply to internet sales where the retailer is based outwith Scotland and whether it would apply to individuals seeking to sell knives where this is not part of a business)

As noted above, responses broadly in favour of the proposal for a licensing scheme included one from ACPOS:


“This proposal is fully supported given the problem surrounding knife carrying and associated violence particularly in Glasgow and most of the central West of Scotland. Any objection to such measures must be weighed against the potential benefits of limiting the immediacy of access to such knives.” (ACPOS 2005, p 1)

The response from COSLA put forward the view that problems associated with enforcing a licensing scheme mean that such an approach is unlikely to contribute significantly to public safety. It went on to argue that:

“if someone really wants to purchase a knife then they will find ways around it [ie around licensing restrictions], in much the same way as they do with any other licensed product. There would be greater merit in seeking to address the reasons why people feel the need to carry knives in the first place. (…) A thorough examination into the origins of attitudes to violence might in the long-term prevent people from carrying knives in the first place [and] would have a more demonstrable impact than tinkering around the edges and focusing on the point of sale.” (COSLA 2005, p 1))

The Scottish Executive has indicated that it is aware of the need for non-legislative measures (eg research into the causes of violence and educational initiatives) as part any solution to the problem of knife crime. It does, however, argue that its proposals for law reform in this area are a vital part of a wider programme of measures. A response from the Law Society of Scotland questioned whether there is clear evidence indicating that: (a) non-domestic knives are more of a problem than domestic knives; and (b) restrictions on non-domestic knives will not simply result in greater use of other weapons. The response from the Faculty of Advocates, which opposed the introduction of a licensing scheme, suggested that:

“restrictions on the public display of knives such as are already in place for pornographic material and fireworks ought to be made. This method of ‘controlled’ rather than ‘licensed’ sale could be incorporated into existing legislation thus reducing cost and unnecessary intrusion into commercial life while still meeting some of the objectives of the Executive.” (Faculty of Advocates 2005, p 3)

Responses – licence conditions The Consultation Paper went on to seek views on any conditions which should be attached to a licence. As noted above, it set out a number of possible conditions. Clearly, views on any conditions are influenced by opinions on whether or not a licensing scheme is a good idea. The Consultation Analysis stated that a majority of respondents commenting on this topic were of the view that, if there is to be a licensing scheme, then the holder of a licence should have to comply with some conditions. However, it also noted that there was a mixed reaction to the suggested conditions. It indicated that there was most support for conditions:

• requiring retailers to keep records of those to whom they sell non-domestic knives • requiring retailers to obtain photographic evidence of a purchaser’s identity


In relation to the other suggested conditions, some produced less comment but were seen as quite sensible by those who did respond (eg requiring retailers to record descriptions of knives sold), whilst others led to significant negative comment (eg that requiring a ‘cooling off’ period could be particularly problematic where legitimate purchasers live quite far away from a relevant retailer). Additional suggestions for conditions included: (a) requiring those seeking a licence to be fit and proper people for such a trade and to show that they are running the type of business where it is appropriate to sell non-domestic knives; and (b) requiring licensed retailers to provide relevant training to staff.

Responses – costs for businesses The Consultation Paper sought views on the costs for businesses wishing to sell non-domestic knives if a licensing scheme is introduced. The Consultation Analysis noted that the following potential costs were identified by respondents:

• the cost of obtaining a licence from the licensing authority (assuming licensing authorities seek to recoup some or all of their costs by charging for licences)

• the cost of complying with any conditions attached to a licence (eg if the conditions of a licence require a retailer to install CCTV to record transactions)

• any negative impact on the level of trade There were mixed views on whether businesses would face significant costs under some or all of the above. For example, some respondents argued that a licensing scheme would only deter potential purchasers with no legitimate reason for buying a knife whilst others were concerned that (depending on the conditions of any licence) legitimate purchasers might also be discouraged. A consultation response from COSLA stated that local authorities should be able to recover all of the costs which they incur in implementing any licensing scheme.

Responses – offence of purchasing a non-domestic knife from an unlicensed seller The Consultation Paper also sought views on whether it should be an offence to buy a non-domestic knife from an unlicensed seller (thus exposing the purchaser to the possibility of criminal sanctions). The Consultation Analysis stated that, out of 105 clear responses to the question, respondents were marginally in favour of the proposal (55 to 50). However, it also noted that most respondents qualified their position. Responses generally in favour of the proposal included one from ASPS. Responses generally opposed to the proposal included ones from ACPOS, the Faculty of Advocates and the Scottish Law Agents’ Society. (The proposal is not taken forward in the Bill.) Issues highlighted included:

• the need to have arrangements in place allowing potential purchasers to satisfy themselves as to the existence of a licence

• potential difficulties in enforcing such an offence (eg requiring buyers to retain evidence of purchase from a licensed seller; distinguishing between knives bought before and after any law comes into force; and dealing with knives which are bought outwith Scotland)


RESTRICTING THE SALE OF SWORDS

Proposals The Consultation Paper suggested a number of options in relation to the sale of swords. For example: (a) including swords in the proposed licensing scheme for the sale of non-domestic knives; (b) only allowing swords to be sold to people who are members of a group with a legitimate interest in purchasing that type of sword (eg in relation to particular sports); (c) prohibiting the sale of swords (or of certain types of sword); and (d) requiring any person wishing to buy a sword to have a personal licence (similar to existing firearms legislation). In relation to the final option, the Consultation Paper noted that the obtaining of a licence might involve evidence that the applicant has no criminal record and also legitimate reason for owning a sword. In addition, the licence holder might have to pay an administrative charge and provide up-to-date contact details. The Consultation Paper suggested that one possibility would be to include swords in the proposed licensing scheme for the sale of non-domestic knives, before deciding whether further measures are required:

“Regulating the sale of non-domestic knives and swords through a licensing scheme might be enough to discourage people from buying these weapons for the wrong reasons – and indeed to ensure that retailers themselves were responsible in their trading. If, however, an evaluation of any licensing scheme showed that swords were continuing to get into the wrong hands, we might wish to consider some of the more far-reaching solutions, such as banning the sale of certain types of sword or licensing purchasers.” (Scottish Executive 2005a, paras 66-67)

Responses – including swords in a licensing scheme for non-domestic knives The Consultation Analysis stated that opinion was fairly evenly divided for and against the proposal to include swords in a licensing scheme for the sale of non-domestic knives, with 61 respondents in favour and 49 opposed. Responses generally in favour of the proposal included ones from ACPOS and ASPS. Responses generally opposed to the proposal included one from the Scottish Law Agents’ Society. Some respondents questioned whether there is a significant problem with the use of swords in violent crime, whilst others thought that it was sensible to include swords within provisions applying to non-domestic knives. Some concerns were expressed that any restrictions could have a particularly detrimental impact on small Scottish businesses which produce and/or sell high quality swords. In relation to the level of use of swords in violent crime, Detective Chief Superintendent Carnochan stated in evidence to the Justice 2 Committee (during consideration of the Police, Public Order and Criminal Justice (Scotland) Bill) that:


“in 2004-05 there has been only one murder involving a sword. That is one too many, but we must put the situation in context. There have been four attempted murders and 23 serious assaults involving swords. Those are the crimes that have been reported (…). Our experience indicates that the main consideration in public places is portability. Razor gangs would use razors because gang members could close them and put them in their pocket without injuring themselves. Young men are likely to carry a locking knife and if they carry something that is described as a Samurai sword, it will probably be a short one because they are relatively straight, do not have a great big hilt and come in a scabbard. That means that anyone who carries such a sword will not hurt themselves and will be able to put it down their trousers. When it comes to portability, that may be the choice of many.” (Scottish Parliament Justice 2 Committee 2005, col 1848)

The response from the Scottish Law Agents’ Society argued that:

“We think there is a case to be made for banning the sale of swords, subject to exemptions, rather than introducing an unwieldy licensing system. We foresee however that there may be so many exemptions that there could be legislative drafting problems.” (Scottish Law Agents’ Society 2005, p 6)

Responses – restricting the sale of swords to members of approved organisations In relation to the suggestion that swords should only be sold to people who are members of groups with legitimate interests in purchasing particular types of sword, the Consultation Analysis noted that respondents were almost evenly divided – 51 agreeing with the proposal and 56 disagreeing. Responses generally in favour of the proposal included ones from ACPOS, ASPS and the Scottish Retail Consortium. Responses generally opposed to the proposal included one from the Scottish Law Agents’ Society. Issues highlighted included:

• would organisations need to obtain approval, if so how would this be done, what costs would there be and what accreditation would their members have?

• what responsibility would approved organisations have for their members (including times when members are not involved in activities of the organisation)?

• would individuals be allowed to retain swords after membership of an approved organisation has lapsed?

• would some legitimate purchasers who are not members of any organisation (eg private collectors) be prevented from buying swords?

• how would any provisions apply to tourists and to exports?

Responses – prohibiting the sale of swords (or of certain types of sword) The Consultation Analysis noted that most respondents were opposed to an outright ban on the sale of swords. The Consultation Paper went on to seek views on whether the sale of particular types of sword – specifically samurai swords – should be prohibited. Again, the Consultation Analysis noted that most of those responding to the suggested prohibition opposed such a ban. Issues highlighted by respondents included:


• is there evidence to show that the use of samurai swords in violent crime is a significant

problem? • would a total ban on the purchase of samurai swords simply lead to anyone who might

have sought to buy such a sword for illegitimate reasons seeking to acquire some other type of weapon?

• should a distinction be drawn between high quality swords and cheap imitations – on the basis that the former are not likely to be bought for use in violent crime?

The Consultation Paper went on to seek views on whether, in the event of a general ban on the sale of samurai swords, certain groups of people should be exempt from the prohibition. Suggestions for exemptions included those involved in certain martial arts and collectors of antique swords. The Policy Memorandum published along with the Bill states that the sale of swords will be allowed to continue provided that any purchaser is buying a sword for a specified legitimate purpose.

Responses – requiring any person wishing to buy a sword to have a personal licence In relation to the possibility of requiring anyone wishing to buy a sword to obtain a personal licence, the Consultation Paper itself stated that such a system is likely to be expensive to establish and operate, and that there would have to be exemptions for tourists if that element of the market was to be retained. The Consultation Analysis stated that, in relation to those responses expressing a clear view on whether such a system should be introduced, 49 respondents agreed and 58 disagreed. Issues highlighted by respondents included:

• how would the scheme apply to people living in Scotland who seek to buy swords from suppliers based in other countries (eg internet purchases and purchases whilst on holiday)?

• would a licence be required by those who already own swords or is it just the act of purchase which would be covered?

The proposal is not taken forward in the Bill.

PROVISIONS OF THE BILL

LICENSING SCHEME FOR THE SALE OF NON-DOMESTIC KNIVES AND SWORDS The Policy Memorandum states that:

“The Bill provides for the introduction of a new mandatory licensing scheme for the commercial sale of swords and non-domestic knives. The scheme will apply to those persons who carry on the business of a dealer in swords, non-domestic knives and similar items. The licence will be known as a knife dealer’s licence.” (para 104)


Section 43 of the Bill adds 16 new sections (27A-27R) to the Civic Government (Scotland) Act 1982 (‘the 1982 Act’). These new sections, dealing with the licensing and regulation of knife dealers, are inserted into Part II of the 1982 Act which contains provisions on the licensing and regulation of particular activities (eg of taxis and private hire cars). Section 44 of the Bill amends some of the existing sections of the 1982 Act to accommodate the new licensing provisions for knife dealers.10

It is proposed that local authorities should act as licensing authorities in relation to knife dealers, in the same way as they currently do for other licensing schemes under the 1982 Act.

Scope of the licensing scheme A knife dealer’s licence will only be required for ‘carrying on business as a dealer’ in relevant articles. The Bill (proposed new section 27A(3) of the 1982 Act) goes on to provide that a ‘dealer’ means:

“a person carrying on a business which consists wholly or partly of: (a) selling; (b) hiring; (c) offering for sale or hire; (d) exposing for sale or hire; (e) lending; or (f) giving, to persons not acting in the course of a business or profession any article (…)”

Some points to note:

• private sales will not require a licence – an individual who decides to sell a knife is not covered by the provisions where the sale is not part of any business carried on by that individual

• businesses which do not sell to private purchasers will not require a licence – any sales to persons ‘acting in the course of a business or profession’ are not covered by the provisions

The Bill (proposed new section 27A(2) of the 1982 Act) provides that the articles covered by the licensing scheme are:

“(a) knives (other than those designed for domestic use); (b) knife blades (other than those designed for domestic use); (c) swords; (d) any other article –

(i) which has a blade; or (ii) which is sharply pointed, and which is made or adapted for use for causing injury to the person.”

10 The Scottish Executive has decided to introduce a licensing scheme for the sale of non-domestic knives by way of primary legislation. The Consultation Paper (paras 30-33) had indicated that another possibility would be to introduce such a scheme by way of secondary legislation using powers in the 1982 Act.


Some points to note:

• knives designed for domestic use are not covered – the Policy Memorandum states that, as a result, business “selling only domestic knives, such as cutlery and DIY products, will not require a licence” (para 107)

• the Policy Memorandum states that ‘any other article’ would include arrows and crossbow bolts

The Bill does not elaborate on the distinction between domestic and non-domestic knives. It will, therefore, be for the courts to provide further legal guidance. This is the same approach as adopted in the Police, Public Order and Criminal Justice (Scotland) Act 2006 (section 75 of which raised the minimum age for purchasers of non-domestic knives). However, the Consultation Paper did include a possible definition of a non-domestic knife (see p 11 above). The Bill would allow the Scottish Ministers to alter, by statutory instrument, the list of articles covered by the licensing scheme (see proposed new section 27A(6) of the 1982 Act). The Policy Memorandum states that:

“It is intended that this power will be used to provide that a licence will not be required to sell folding pocketknives, sgian dubhs or kirpans where the blade is less than 7.62 centimetres (3 inches). This would reflect the current law on carrying knives in public (section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995), which provides a specific exception for penknives of this size and provides defences in law for knives (such as kirpans and sgian dubhs) carried for religious reasons or as part of a national costume.11 Dealers who wish to sell larger versions of these knives will however require a licence.” (para 108)

In general, the licensing provisions are based on the location where the business of a knife dealer is conducted (eg the location of a shop selling non-domestic knives). However, special provision is made in relation to remote sales (eg by mail order, telephone or internet). In such cases the Bill provides (proposed new section 27N of the 1982 Act) that where orders are received and articles dispatched from different premises, it is the latter which are generally treated as the relevant premises for the purposes of the licensing scheme.

Licence conditions The Bill (proposed new section 27C of the 1982 Act) would allow the Scottish Ministers to set, by statutory instrument, minimum conditions for any knife dealer’s licence. Local authorities would be able to impose additional licence conditions. Different conditions could apply to the sale of different types of articles. The Policy Memorandum states that:

“The Scottish Ministers will use the power to set minimum conditions for both sword and non-domestic knife dealers. These conditions will include:

- requiring retailers to record a description of the type of sword or non-domestic knife sold;

- requiring retailers to keep records of those to whom they sell swords or non-domestic knives;

11 A ‘kirpan’ is a ceremonial sword or dagger carried by Sikhs.


- restricting the display of swords or non-domestic knives on the licensed premises to ensure that they are not visible from the street or any entrance to a dealer’s premises;

- enabling local authorities to specify such further conditions relating to storage as are appropriate to the locality or individual premises, eg storage in locked cases or preventing visible display within the shop itself;

- enabling local authorities to specify the means by which identity should be established, eg by photographic means or utility bills.

- enabling local authorities to require other security measures appropriate to the premises, eg overnight storage of swords and non-domestic knives, or use of CCTV; and

- enabling local authorities to specify the packaging requirements for swords and non-domestic knives sold by mail or otherwise.” (para 114)

Offences Carrying on business as a knife dealer without a licence – this will be a criminal offence with a maximum sentence (under solemn procedure) of two years imprisonment and/or a fine (see section 44(3)(a) of the Bill). There is a defence of ‘reasonable excuse’. Carrying on business as a knife dealer in breach of licence conditions – this will be a criminal offence with the maximum sentence (under summary procedure) being a fine not exceeding level 5 on the standard scale, currently £5,000 (see section 44(3)(c) of the Bill). There is a defence of ‘due diligence’. Knowingly or recklessly providing false information to a licensing authority – it will be a criminal offence for a person making an application for a knife dealer’s licence to provide false information (see section 44(d) of the Bill). The maximum sentence (under summary procedure) is a fine not exceeding level 5 on the standard scale, currently £5,000. Knowingly or recklessly providing false information to a knife dealer – it will be a criminal offence for a person (eg the purchaser of a knife) to provide false information where the knife dealer is required to collect the information under the terms of the licence (see proposed new section 27D of the 1982 Act). The maximum sentence (under summary procedure) is a fine not exceeding level 3 on the standard scale, currently £1,000. There are also offences aimed at anyone who seeks to hinder the enforcement of the licensing scheme by the police or local authority trading standard officers (see proposed new sections 27F(6) and 27G(3) of the 1982 Act). The maximum sentence (under summary procedure) is a fine not exceeding level 3 on the standard scale, currently £1,000.

Enforcement The Bill (proposed new sections 27E and 27F of the 1982 Act) sets out powers allowing the obtaining and enforcement of a warrant to enter and search premises, and seize relevant articles. A warrant may be obtained where there are reasonable grounds for suspecting that: (a) unlicensed dealing in non-domestic knives, etc is taking place; or (b) a licensed dealer is breaking the conditions of the licence. A warrant may be enforced by the police or local authority trading standard officers.


The Bill also sets out powers allowing the inspection of documents (see proposed new section 27G of the 1982 Act) and the forfeiture of non-domestic knives and swords (see proposed new sections 27J and 27K of the 1982 Act). The Financial Memorandum (para 189) included with the Explanatory Notes states that enforcement issues associated with the sale of swords and non-domestic knives are being considered by a group established by the Scottish Executive’s Violence Working Group.

RESTRICTING THE SALE OF SWORDS The licensing scheme outlined above would provide some new restrictions on the sale of swords. This part of the briefing looks at other provisions in the Bill aimed at restricting the sale of swords. Section 141 of the Criminal Justice Act 1988 (‘the 1988 Act’) currently includes prohibitions on the manufacture, sale or import of specified offensive weapons (eg butterfly knives). The Bill (see in particular section 46) seeks to amend the 1988 Act so that the Scottish Ministers could (by statutory instrument), when including swords within the list of weapons prohibited by section 141 of the 1988 Act, modify the application of section 141. The Policy Memorandum states that such modification would allow swords to be sold for specified approved purposes. It goes on to state that:

“It is intended that the order made under the Bill’s provisions will provide that it shall be an offence to sell, hire, lend or give a sword – to avoid creating loopholes and enhance enforceability. Unlike other orders made under section 141, it is envisaged that the order relating to swords will not make it an offence to expose or offer for sale a sword. This avoids making sellers guilty of an offence before they have had an opportunity to check the purchaser’s intended use and confirm that it is for a permitted purpose.” (para 98)

The Policy Memorandum states that existing defences under section 141 of the 1988 Act, coupled with exceptions which will be included in the planned statutory instrument, will allow the sale of swords for legitimate uses to continue. Legitimate uses are stated to include:

“Antique Collecting – the preservation of the past by many individual collectors in this country is often to the benefit of our museums and national heritage bodies. Fencing – fencing swords are used in organised events across the UK and internationally; Film, television and theatre – swords are frequently used as props in period dramas; Manufacture – sword-smiths in Scotland manufacture swords, in some cases to extremely high specifications, involving traditional techniques and attracting international interest and renown; Martial arts – swords are used in many martial arts organised on a national and international basis; Re-enactment – re-enactment societies do much to bring significant aspects of Scotland’s history to life, using quality reproduction weapons;


Religion – the sword is of particular religious significance to Sikhs; and Scottish Highland dancing – the traditional Scottish sword dance, when authentically performed, inevitably involves swords.” (para 102)

As noted above, the Bill would allow the Scottish Ministers to set, by statutory instrument, minimum conditions for any knife dealer’s licence (which will normally be required for the commercial sale of swords). The Policy Memorandum states that:

“In respect of swords, the Scottish Ministers will use the power conferred by the Bill to require that dealers record full details of the intended use of any sword, take reasonable steps to confirm that it is for an authorised purpose, and record what steps they took to do so.” (para 115)

Currently, offences under section 141 of the 1988 Act carry a maximum penalty (under summary procedure) of six months imprisonment and/or a fine not exceeding level 5 on the standard scale (currently £5,000). The Bill would allow the Scottish Ministers to increase (by statutory instrument) these penalties in relation to the application of the section to swords – up to a maximum of two years imprisonment and/or a fine under solemn procedure. The Bill would also allow the Scottish Ministers to create (by statutory instrument) an offence (punishable on summary conviction only) where a person acquiring a sword provides false information. The maximum penalty which could be attached to such an offence would be imprisonment of up to 12 months and/or a fine not exceeding level 5 on the standard scale (currently £5,000).

COSTS

Businesses The Financial Memorandum included with the Explanatory Notes states that the “main financial burden will fall on businesses who continue to sell swords, non-domestic knives and similar weapons” (para 190). It suggests that the main cost for businesses will be the annual fee for a knife dealer’s licence. It notes that compliance with licence conditions may lead to some additional costs for businesses but states that:

“Any licence conditions would have to be reasonable, proportionate and should not jeopardise the continuing operation of the business.” (para 190)

As noted earlier in this briefing, some responses to the Consultation Paper also suggested that businesses might suffer from a negative impact on trade. The Financial Memorandum does not comment specifically on this point.

Scottish administration The Financial Memorandum predicts that the costs for the courts and prosecution will be low, based on current levels of compliance with other licensing schemes. It also notes that, if the Bill is successful in achieving its objective of preventing weapons falling into the wrong hands and thereby reduces the current high level of existing weapons offences, any additional costs on the Scottish Administration, as a result of the provisions in Part 3 of the Bill, may be balanced by a


reduction in the costs associated with those offences. It goes on to state that greater success could lead to a reduction in such costs.

Local authorities The Policy Memorandum notes that the licensing scheme will be administered by local authorities, and that its enforcement will mainly be a matter for local authority trading standard departments. The Financial Memorandum states that the costs incurred by local authorities will be recoverable through knife dealer’s licence fees.

SOURCES Association of Chief Police Officers in Scotland (‘ACPOS’). (2005) Tackling Knife Crime: a Consultation – consultation response [Online]. Available at: http://www.scotland.gov.uk/Publications/2005/11/30165358/54049 [Accessed 18 October 2006] Action on Violence in Scotland [Online]. Available at: http://www.actiononviolence.com/aov/aov_display_home.jsp?p_applic=CCC&p_service=Content.show&pContentID=21& [Accessed 18 October 2006] Action on Violence in Scotland. (2006) Amnesty Ends – Final Tally [Online]. Press release July 2006. Available at: http://www.actiononviolence.com/aov/files/Amnesty%20Ends%20-%20Final%20Tally.doc [Accessed 18 October 2006] COSLA. (2005) Tackling Knife Crime: a Consultation – consultation response [Online]. Available at: http://www.scotland.gov.uk/Publications/2005/11/30165358/55575 [Accessed 18 October 2006] Custodial Sentences and Weapons (Scotland) Bill [as introduced] Session 2 (2006). SP Bill 80. Edinburgh: Scottish Parliament. Available at: http://www.scottish.parliament.uk/business/bills/80-custsentwea/b80s2-introd.pdf Custodial Sentences and Weapons (Scotland) Bill: Explanatory Notes (and other accompanying documents) Session 2 (2006). SP Bill 80-EN. Edinburgh: Scottish Parliament. Available at: http://www.scottish.parliament.uk/business/bills/80-custsentwea/b80s2-introd-en.pdf Custodial Sentences and Weapons (Scotland) Bill: Policy Memorandum Session 2 (2006). SP Bill 80-PM. Edinburgh: Scottish Parliament. Available at: http://www.scottish.parliament.uk/business/bills/80-custsentwea/b80s2-introd-pm.pdf Eades, C. (2006) ‘Knife Crime’: Ineffective Reactions to a Distracting Problem? – A Review of Evidence and Policy. London: The Centre for Crime and Justice Studies. Available at: http://www.kcl.ac.uk/depsta/rel/ccjs/knife-crime-2006.pdf Faculty of Advocates. (2005) Tackling Knife Crime: a Consultation – consultation response [Online]. Available at: http://www.scotland.gov.uk/Publications/2005/11/30165358/56251 [Accessed 18 October 2006]













Leyland, A. (2006) Homicides Involving Knives and Other Sharp Objects in Scotland, 1981-2003. Journal of Public Health 28(2) 2006, p 145-147 McCallum, F and Oag, D. (2005) Police, Public Order and Criminal Justice (Scotland) Bill. Edinburgh: Scottish Parliament. SPICe Briefing 05/57. Available at: http://www.scottish.parliament.uk/business/research/briefings-05/SB05-57.pdf Macdonald, P. (2005) Petition PE 893. Edinburgh: Scottish Parliament. Available at: http://www.scottish.parliament.uk/business/petitions/docs/PE893.htm Scottish Executive. (2004) Crackdown on Knife Crime [Online]. Press release 22 November 2004. Available at: http://www.scotland.gov.uk/News/Releases/2004/11/22133220 [Accessed 18 October 2006] Scottish Executive. (2005a) Tackling Knife Crime: a Consultation. Edinburgh: Scottish Executive. Available at: http://www.scotland.gov.uk/Publications/2005/06/27110147/01518 Scottish Executive. (2005b) Homicide in Scotland, 2004/05. Edinburgh: Scottish Executive. Available at: http://www.scotland.gov.uk/Publications/2005/12/13133031/30316 Scottish Executive. (2005c) Supporting Police, Protecting Communities: Proposals for Legislation. Edinburgh: Scottish Executive. Available at: http://www.scotland.gov.uk/consultations/justice/sppcpl-00.asp Scottish Executive. (2006a): Knife amnesty to get blades off the streets [Online]. Press release 24 May 2006. Available at: http://www.scotland.gov.uk/News/Releases/2006/05/23100724 [Accessed 18 October 2006] Scottish Executive. (2006b): New guidelines on knife crime [Online]. Press release 22 May 2006. Available at: http://www.scotland.gov.uk/News/Releases/2006/05/22091049 [Accessed 18 October 2006] Scottish Executive. (2006c) Tackling Knife Crime: a Consultation – responses from organisations and individuals and analysis of responses [Online]. Available at: http://www.scotland.gov.uk/Publications/2005/11/30165358/53589 [Accessed 18 October 2006] Scottish Labour Party and Scottish Liberal Democrats. (2003) A Partnership for a Better Scotland. Edinburgh: Scottish Labour Party and Scottish Liberal Democrats. Available at: http://www.scotland.gov.uk/library5/government/pfbs-00.asp Scottish Law Agents’ Society. (2005) Tackling Knife Crime: a Consultation – consultation response [Online]. Available at: http://www.scotland.gov.uk/Publications/2005/11/30165358/55129 [Accessed 18 October 2006] Scottish Parliament. (2006) Written Answers Thursday 22 June 2006 S2W-26699. Edinburgh: Scottish Parliament. Available at: http://www.scottish.parliament.uk/business/pqa/wa-06/wa0622.htm Scottish Parliament Justice 2 Committee. (2005) Official Report 22 November 2005. Edinburgh: Scottish Parliament. Available at: http://www.scottish.parliament.uk/business/committees/justice2/or-05/j205-3202.htm

http://www.scottish.parliament.uk/business/research/briefings-05/SB05-57.pdf

http://www.scottish.parliament.uk/business/petitions/docs/PE893.htm








http://www.scotland.gov.uk/library5/government/pfbs-00.asp


http://www.scottish.parliament.uk/business/pqa/wa-06/wa0622.htm

http://www.scottish.parliament.uk/business/pqa/wa-06/wa0622.htm

http://www.scottish.parliament.uk/business/committees/justice2/or-05/j205-3202.htm


Trading Standards Institute. (2006) Children Still Sold Knives [Online]. Press release 20 June 2006. Available at: http://www.tsi.org.uk/media/index.htm?frmClient=4E097775-1185-6B25-FC4594F953663717&frmItemID=182193&frmShared=1 [Accessed 18 October 2006] Violence Reduction Unit [Online]. Available at: http://www.strathclyde.police.uk/index.asp?locID=808&docID=-1 [Accessed 18 October 2006] Violence Reduction Unit. (2006) Reducing Violence: An Alliance for a Safer Future. Glasgow: Violence Reduction Unit. Available at: http://www.actiononviolence.com/aov/files/rvasf.pdf



http://www.strathclyde.police.uk/index.asp?locID=808&docID=-1


J2/S2/06/26/7

Christmas Day and New Year’s Day Trading (Scotland) Bill: Supplementary evidence

Please find attached supplementary evidence on the Christmas Day and New Year’s Day Trading (Scotland) Bill from the following:

Reverend Graham Blount, Scottish Churches Parliamentary

Office Bruce Fraser, USDAW

Clerk to the Committee

19 October 2006

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Supplementary evidence from Graham Blount Paragraph 3.6. of the report ‘Whose Convenience? An Enquiry into the Social Effects of Extending Weekend Working and Sunday Trading’ by a panel of parliamentarians chaired by Rt. Hon. Lord Anderson of Swansea DL and published in 2006 contains information on pressures on employees to work: “Advocates of relaxing the six hour rule will remind us of the employee protection provisions in the 1994 Sunday Trading Act and maintain that no employees are obliged to work on Sundays. Tesco tells us that so far as they are concerned, work on Sunday is optional. ‘We pay premium payments to those who choose to work and we have rigorous systems in place to make sure staff are never coerced into working shifts they are uncomfortable with.’ However, Working Families reports that its legal helpline tells them that retail staff asked to work on Sundays are afraid that they may lose their jobs if they refuse to work at weekends. A survey of 500 shop staff by Usdaw found that 62% had come under pressure to work on Sundays and only 11% had used their legal right to opt out of Sunday working. The Keep Sunday Special submission refers to the case of a woman in Swansea who felt enormous pressure not only from her employer but also from her colleagues. She was told by a supervisor ‘that it was in my interests to be part of the team…. No one else is complaining.’”

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Usdaw response to Justice 2 Committee re Glasgow City Council’s Concerns Glasgow CC state: “there may be an issue relating to ethnic minorities who operate retail premises which are not included in one of the exempt categories and who may want to open on these days. A ban on such trading might be seen to be restrictive.” Response The Christmas Day and New Year’s Day Trading (Scotland) Bill proposes that large stores are shut on these days in order to preserve them as traditional days for family, and as days that have cultural significance in Scotland. Christmas Day in the UK is a day for families of whatever religion. The Christmas Day Trading Act 2004 that covered England and Wales recognised this and did not receive any opposition from representatives of other religions. New Year’s Day does not have any religious significance, and there is therefore no reason for people from ethnic minorities to view a ban on large stores opening on that day as ‘restrictive’. New Year’s Day is a day that is important to the special culture of Scotland and the traditions of Hogmanay. The fact that the Scottish Parliament have not received adverse representations from representatives of other religions supports our contention that people from ethnic minorities do not view the Bill’s proposals as restrictive.

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