Scottish Government
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A ‘more open and just’ justice system

A bill which seeks jointly to resolve a sentencing anomaly around mandatory life sentences and progress further the Scottish Government's commitment to openness and transparency in relation to the Al-Megrahi case was published yesterday.

The Criminal Cases (Punishment and Review) (Scotland) Bill, if passed, will resolve an technical anomaly which arose following the Appeal Court's judgement in the case of Petch and Foye v. HMA, which meant that prisoners given a discretionary life sentence or Order for Lifelong Restriction (OLR) can apply to become eligible for parole earlier than those serving sentences of a fixed length. Under this new legislation the courts will regain the discretion to set a 'punishment part' of those sentences that it considers appropriate in all the circumstances of a particular case.

The Bill will also provide a framework for the Scottish Criminal Cases Review Commission (SCCRC) to decide whether it is appropriate to disclose information concerning cases it has referred to the High Court for appeal against conviction which have subsequently been abandoned or have fallen. Although general in nature, the Bill will apply in the circumstances of the case of Abdelbaset Al-Megrahi, who was convicted in 2001 of the murder of 270 people in the Lockerbie bombing.

Commenting on the proposed legislation, Cabinet Secretary for Justice Kenny MacAskill said:

"The Petch and Foye judgement introduced an absurd situation where prisoners serving life sentences were able to qualify for parole earlier than those not serving life. No sensible person would endorse that approach. Appeal judges who made the ruling called on the Scottish Parliament to intervene with "a clear, well-considered legislative solution" and I call for all parties to unite behind this bill and correct this legal anomaly.

"Protecting the public and punishing serious offenders is the priority here and this Bill will ensure that our courts have the sentencing powers they need to make sure that punishment is always appropriate to the offender's crime. Parole should certainly not be considered for prisoners who have not fulfilled what the court deems to be an adequate period of punishment.

"It should be noted that no prisoner has been released from prison as a result of the Petch and Foye judgement as the Parole Board plays an important role in assessing the risk individual offenders pose - if there is any question of them being a danger to the public they will remain behind bars.

"However, the pain and suffering caused, particularly to victims and their families when they hear that serious offenders will be considered early for release can be deeply traumatic and I hope this legislation will bring reassurance that public safety is the absolute priority.

"The second part of the Bill builds on the Scottish Government's track record of openness and transparency in response to the wide ranging public interest in the Al-Megrahi case. Today's legislation is a key step in our commitment to do all we can to enable the release of information.

"The Bill puts in place a framework that will enable, as far as possible within devolved competence, the disclosure of information by the SCCRC in cases where an appeal has been abandoned or has fallen.

"This government continues to do all we can to achieve publication of the Statement of Reasons in the Al-Megrahi case, while of course we cannot legislate on reserved matters. That is why I have today written to the UK Government asking that they set aside data protection legislation freeing the Commission from this obstacle in deciding whether they will publish information.

"We believe there is a compelling and genuine public interest justification for making an exception to data protection legislation in this case and that such an exception would not set a wider precedent.

"The Scottish Government does not doubt the safety of the conviction of Mr Al-Megrahi. Nevertheless we recognise that others have concerns regarding the wider issues relating to the atrocity and given the massive public interest in the case I believe it is right that the Commission's Statement of Reasons is released. The Bill will now be properly scrutinised through the full primary legislation parliamentary process."

The effect of the Petch and Foye judgement has been that some offenders who had received an OLR or discretionary life sentence have been able to successfully appeal against, and in some cases shorten, the length of the punishment part of their sentences.

The 'punishment part' of a sentence is the minimum period of time which an offender must serve in prison before they become eligible to apply to the Parole Board for consideration of being released on parole.

The role of the Parole Board is to consider whether prisoners continue to present a risk to public safety. If the Parole Board considers an offender does continue to present a risk to public safety, the Parole Board will not authorise the release of that offender on parole.

Our changes to the law will not be retrospective and therefore will not impact on cases and appeals currently being heard.

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