 I welcome everyone to the Justice Committee's 18th meeting of 2015. Can I ask everyone to switch off mobile phones and other electronic devices as interviewed broadcasting, even when switched to science? I apologise and receive from Margaret Mitchell and Gil Paterson. Only one item today, and it's a further evidence session on the Prisoners' Control of Lee Scotland Bill, and it's on particular on the Government amendments to this bill, which we heard from the Cabinet Secretary yesterday. Copies official report for that session, you should have them in front of you, and I thank the OR for getting them to us so swiftly. There's no pay rise in that, it's just thanks. I also wish to put in record the committee's thanks to those who provided written submissions on the amendments with what was a very tight time scheme, which have been really useful in assisting our scrutiny. I welcome the meeting and I thank you both for coming again at relatively short notice. Professor Fergus McNeill, Professor of Criminology and Social Work, University of Glasgow, Professor Cyrus Tata, Professor of Law and Criminal Justice, University of Strathclyde. You've had an opportunity, I hope, to have a look at the evidence from the Cabinet Secretary, and I go straight to questions from members, please. I've got Elaine, then I've got Christian. Thanks, convener. As you'll be aware, the amendments now have a period that is served in custody and then a six-month period to be served in the community, irrespective of the length of sentence for anybody who has sentenced to over four years. I wondered whether you agreed that that was the best way of addressing the issues about cold release, if automatic early release was got rid of altogether, or whether you think that a more proportionate response to the type of crime the length of sentence would have been more appropriate. Professor Tata, if you want to move on. I think the simple answer to that is unfortunately no. Clearly, you'll be aware that we argued for and the committee rightly saw the merit in having a period of mandatory supervised release to get away from the problem so-called cold release. That's sensible from what was initially a rather foolish proposal. Is this the best way of going forward? No. Should it be proportionate? Yes. For a number of reasons, I think it should be proportionate. It does kind of change the dynamic in terms of how long someone serves, in terms of the sentencing decisions, but I think more than that I'd like to raise. I'm happy to that point first with you about changing the dynamic, which was touched on, I think, by Rod Campbell yesterday, but not really followed through. Just if you explained for public outside what you might change in the dynamic. Well, it means that someone serving a period of, say, four years will have to be released by three years, six months, but someone serving a period of 12 years will end up serving, you know, 11 and a half years. So the percentages, I haven't quite managed to work that out at this moment, are clearly hugely different. It will also mean, by the way, something that the government paper that came out just last week, where it said, I think, well, we don't see any problem with human rights in terms of the provision of programs. We've talked about this before. There's a clear principle, which has been evolving in case law, derived from the European Convention on Human Rights, where it said that you must have fair opportunity to be able to show that you are not a risk to the public. Now, when you change the proportions, when you squeeze down the length of conditional release so far just to six months, it means that someone serving 12 years, who might have been released after, say, eight, may be held until 11 years, six months. Now, they may argue and some will argue. I have not been given fair opportunity to demonstrate I'm not a risk. Now, there is some case law, admittedly initially in indeterminate cases, which suggests that this, I think we can expect this principle to be extrapolated to determinate sentence cases as well. So, I think it should be proportionate. I'm not sure I understand the reason why it said it's not proportionate, why one would go for a blanket six-month approach. I haven't really heard a reason. I know that the Justice Committee said we want to know one of your recommendations is why these periods have been proposed. All I'm aware of is it just feels about right. I think it should be proportionate. It makes sense for it to be proportionate. I think that, in fairness to the cabinet secretary, he says at column two or whatever it is, I'm conscious that I've received evidence that six to twelve weeks after prison police are the period of risk. So, I think he was basing it on a risk assessment that, by making it that period of time, it gives an opportunity of moving from within the prison and having rehab within the prison out to that period covering a risk period and, hopefully, therefore prevent re-offending or risk to the public. I think that's, I'm reading what he said there and I think that's what he said in the report. In a sense, in one sense it's logical that, of course, the first few days and first few weeks are, if you like, generally speaking, because every individual is different, the highest level of risk. It doesn't mean to say that, therefore, in months down the line, one shouldn't also be looking at that. I think that we really need evidence from criminal justice social work on that, but my colleague here, Professor McNeill, has immense knowledge about the level of risk. But can social workers really do the kind of work that they need to do in six months? I'm sceptical about that. I think that there are two problems with having a fixed period and these would apply to varying degrees no matter how long the fixed period was. Just to get the maths and make the proportionality point clear, what the current proposal means is that now if you're sentenced to five years, 90 per cent of your custodial sentence is in fact in prison, but if you're sentenced to 10 years, it's 95 per cent. As the sentence length extends, the disproportionate shrinkage of the supervisory part becomes more aggravated as the sentence length grows, which makes sentencing less transparent. It makes the meaning of a custodial sentence different depending on its length, if you follow my logic. How much of it is custodial and how much of it is supervisory is now changing with sentence length instead of being fixed proportionately? That's one problem. I think that that is some kind of problem for proportionality in relation to justice, but I'll confine myself more to the stuff that I know better, which is about the practicalities of supervising people after release safely. Yes, the cabinet secretary is absolutely right that the first six weeks to three months are the critical period when establishing the basics for successful resettlement and reintegration must be achieved. That's housing, establishing benefits claims or finding employment, the immediate renegotiation of entry into the family, the way that that affects family dynamics, the re-engagement or not with friends, neighbours, informal social networks, all of that stuff is going to be critically important to manage carefully in the first three months or so. However, imagine yourself in the position of coming out of prison after serving 10 years. Maybe a way to try and think your way into this without having been a prisoner is to think about perhaps having worked overseas or just moving house. How long does it take for you to feel that you belong and feel safe in the community that you've come to? How long do you feel a part of its everyday life in such a way that you are relaxed and confident in the way that you navigate your routines? It seems obvious to me that if you've spent 10 years in prison six months is a very short period of time, not least because of the accumulated effects of the institutionalisation that a long sentence brings. If you flip perspective and put yourself in the seat of the social worker who's supervising that person, if you've done nine and a half years out of 10 because you haven't been deemed eligible for parole, there are two reasons why you might not have been released early. One could be to do with you, so your engagement with programmes, your participation in rehabilitation, your attitudes, whether or not you've been able to address so-called risk factors. However, the other set of reasons are about your social environment. The parole board also receives reports from a social worker based in the community about the proposed address and the suitability of the social context and whether that's going to conduce towards offending or conduce towards resistance from offending. If the legislation means that, as a social worker, I have just six months to, a, work with this individual to address the issues that weren't successfully addressed in prison and, b, engage with their social network in such a way as to facilitate their successful re-entry and reduce risks, I don't know. I mean, I think, to be honest, I'd be throwing up my hands and saying, there's no way I can deal with all of these issues in six months, I need longer. I need longer both to incentivise the person to engage with me in the community and I need longer because the issues are complicated. So, I think six months is too short, particularly for longer sentence prisoners. And just to make the point, of course, these are people who have been denied discretionary release. So, for whatever reason, they have been deemed to be too risky, rightly or wrongly, to be released earlier. So, we're actually dealing with those that are assumed to be of greatest risk to the public. Why would we want to squeeze that period right down to six months? The bill doesn't actually end automatic early release anymore, it just changes when early release happened. Would it have been preferable, a new view, to have had that defined, say, as a percentage of sentence, 10 per cent of sentence, or whatever being served in the community rather than six months? Without doubt, it would be sensible to define it as a percentage, definitely. And as you rightly say, the bill doesn't end automatic early release. And I do ask the question, genuinely puzzled, what is this bill trying to achieve? What problem is this bill trying to solve? Now, if it's the electoral political manifesto problem, the SNP manifesto, 2011, this wasn't a manifesto commitment. In fact, what it was, we remain committed to ending automatic early release. As you say, it's not now doing that, so they're left with the same problem. But it then does say, give itself the caveat, once the criteria set by the McLeish commission are met, and the criteria are about lowering prison numbers. So I don't understand, I genuinely am puzzled, what problem is this bill seeking to solve? It seems to me to be actually attacking the very bit of the release system that works the best, actually works pretty well. And you've heard that before from the RMA and others, this works quite well, the long term end. It's the short term end where I'd have much greater criticism, where people are released nominally on supervision, or they don't get supervision, or they don't get the kind of support. I'm just puzzled as to why we're going for the long term, the part that works the best. Why would we tackle that? So it can't be to do with, presumably, it doesn't solve any political problem around a manifesto commitment, because it doesn't achieve the first part, but in any case, there was latitude that allowed the SNP manifesto allowed itself. So what problem is it trying to achieve, address? Is it public safety? Well, we've been here before, we know that conditional supervised mandatory release is necessary, where you've rightly said as a committee, you've got to have that in there, the government has relented. But these are the people, remember, we're talking about the people who are deemed too risky, long term prisoners, who are deemed too risky to release at the discretionary point. Why would you want to squeeze the mandatory point of supervision and support right down to six months? I don't get it. Just to answer the question, I do think that a proportional system makes more sense, and I think that you can have it and abolish automatic early release, but to do so you need to change what the sentence is and what the sentence means. It seems to me that the device that's required is something like a custodial and supervisory sentence, which has two elements. You can have a sliding-scale part in the middle where the parole board still exercises a measure of discretion in light of judgments about risk and progress, but then I would say, and this is somewhat arbitrary, no later than three quarters you have to be released under mandatory supervision to continue to address the risks and needs and to continue to be supported with the reintegration journey post release. Isn't this where we've already been? Haven't we already been here with the custodial weapons and licensing act of 2007 and its amendment later on? We've actually already been here. Without getting into the technicalities, that bill had lots of other flaws, and I think that it can't be implemented in the form in which it was passed. It's not a case of going back to that act, but that principle, that a custodial sentence in fact must have two parts and that the two parts need to be explicit when the sentence is passed, that can deal with the problem of automatic release and it can deal with the underlying problem of transparency in the sentencing. Have we not done that already under some other, was it a life sentence where there was this odd formula that part of it had to be, you were detained for the safety of the public, but part of it had to be for rehabilitation, what was that? The tariff part, but that's life, that's indeterminate sentence. We've already been there. Yes, that's right, but I'm remembering part of it to meet ECHR, so it's sort of along the same lines. The way to get out of this, clearly part of the motivation, I would suggest for this, is the concern that people feel that sentences don't mean what they say, and they're right. They don't mean what they say, they aren't clear and it's not transparent. We need to be clear that if that's the problem we're trying to tackle, this isn't going to achieve it. The way to achieve it is to describe upfront explicitly what the sentence is. All custodial sentences are a combination rightly, as you've said in your reports, should be of custody and a mandatory period, it might be part discretionary, but then also a mandatory period within that sentence of supervision. So you can call it a custodial and supervised sentence or whatever. It's a question of just saying what the thing is, and we could get out of this bind. That way you can combine the virtue of public safety, namely supervising people on release, particularly those who are at greatest risk, who we deem to be of greatest risk, you can ensure that they get the support and supervision that they need and the public needs for them to have, and you're able to say, this is what the sentence is, and it's about time I think we were upfront with the public about that, because everybody knows now. I mean in the 60s and 70s when parole came in and so on it was kind of a little bit, people didn't really know that actually people were getting out earlier, now everybody knows, and in fact the public's very cynical and sometimes the research suggests that they imagine that people are let out earlier than in fact they are. So we need to be quite clear, and it's a matter of describing what the sentences are. Getting out as such, it's a change of sentence. Absolutely. It's a continuing sentence. Getting out of prison, I don't mean getting off. No, no, but people think getting out and getting off, you know. And that's why we need to say exactly what it is. Are you wanting to ask somebody broad because you're cupping them out there? Good morning. It's more of a comment in terms of, I think we've established that this bill is not about clarity in sentencing. It doesn't purport to be about clarity. In terms of the purportion anti-point, I take your point on board, but we also heard evidence from victim support on the 13th of January agreeing with SACRO that a three-month period at the end of the sentence would be what was required, which I think was accepted also by Mr Peter White of Prisoners First. So they were happy with taking a kind of non-proportionate view. You obviously take a different view, but there are other ways of looking at this. I think with Pete White's evidence, if I'm not mistaken, I think he briefly says, look, this is better than nothing. It's not as bad as before. I'm not sure he says that I think... I've got it in front of me. You go ahead. I may be wrong on that. Sarah Cromby of Victim Support said, SACRO's submission comments that would be good to see a reduction of automatic early release to the last three months of the sentence. I know that Dr Barry talked about the average three-month planning time within the prison. Victim Support thinks that putting in place that three-month period to allow compulsory supervision to take place is something to look at. Convener, does anyone else wish to comment? Peter White, I would agree with that. I think he's got written evidence. There's no point, please. There's no point of order in committee. All right. Well, thanks for that question. Professor Tata was alluding to Mr White's more recent evidence, which is in our papers, and he does say that... That's a point of information. Well, I do beg a point of information. Thank you very much. I love there's no points of order here, as it gives me some control. Yes, so back to the issue, because the issue is, you have two points you're making. The main points I take it is, why six months, and the proportionality. The proportionality isn't fit for purpose. You should have people doing four years who get three and a half, and people with 10 years who do nine and a half. If we're trying to fix a bill, and not just throw it out completely, what do we look at? How do we do it with this? We can't deal with sentencing policy here. No. I think we first need to decide what problem we are trying to solve. Well, we've solved one for you, which is we agreed you can't have cold release, and that has been at least a move forward. I think we'd all support that. That was not a good idea, and it wasn't good if it was just sex offenders and so on, and it's moved on to all. So we've made some progress with the government. So transparency, as I understand it, victims groups, the main complaint is that it's not transparent. It's not clear. Now, as I say, there is a way to deal with that, which is about describing the sentence as it really is, and that way you can have a period of mandatory supervision, which is sufficient and without feeling as if it's telling people that someone is getting one thing when they're doing another. It's actually telling it as it is. Okay. I don't know if we can do it in this bill, but I'm going to add other members to come in. No, I've got Christian. Thank you very much, convener. I enjoyed very much the conversation we had so far, but there's one point that might be missing because we talked about cold release and we all agree on cold release, but there's another point as well. We heard and we learned a lot about this max-out, this opening for max-out. I thought that changing this cabinet is actually made, the government made, was really to pinpoint this. I don't know if you remember, I talked a lot about that mandatory pre-release period, you know, and Sarko said, Flemons, and that was fine. He didn't talk about proportionality, and it seems to know better than some of us, but we got a result of max-out, which we didn't realise that there are some offenders, some prisoners, who will not want to engage, to force them to engage. We had to have that little time for the one who will not do it, discretionary, with the power board beforehand. So it's not about everybody, it's just about that little numbers of people are more difficult. So that was on your written submission, Professor Fergus McNeill, and at the end of it, you had several points, and I think if I looked at all those points, it seems to have been addressed, even the cost, because at the end of the day, we know it's not going to kick in before 2019. So for all those reasons, you did say that you thought the bill should be abundant. When are you now? Well, I still think that the bill is not fit for purpose in its current form. I suppose the two reasons now are that whether I understand this bill as being principally concerned with public safety, which is what it says it is, or whether I consider it as being important for it to deal with the issue of transparency, even if that's not its formal purpose, it's not achieving either, for me. I think that the reasons I gave earlier, as I worked through the example of somebody serving a long sentence, I don't think that holding somebody longer and then releasing them six months before the end of a sentence is the best way of securing public safety in the long term. This is the dilemma that the parole board continually face. If you release earlier, you have longer supervision, and therefore you have longer periods of support to try to navigate the re-entry challenges and actually reduce risk. That means that when the criminal justice system lets the person go, they are being let go in a safer condition. Okay, that's better for them. They're better reintegrated. It's better for the public because they're less likely to re-offend. On that discussion, you are of the idea that automatic early release at two-third was a good thing. I am, yeah. It's to make sure that nobody's maxed out, but the problem is we get into code release. We are back to the code release. How can you balance the two things, having a longer period and not having code release? You said it yourself. It must be within the supervisory period. I think this is where reading extracts of the earlier evidence could potentially be a bit misleading. If you'd said to me it's code release or it's three months, then I would have said three months. If you say to me it's code release or it's six months, I want six. If you say it's code release or 12, I want 12. I want longer in the framework of the total custodial sentence. I want the longest possible period of supervision and support in the community to mitigate the effects of imprisonment and to secure public safety. The parole board dilemma is that the longer it waits to make the release decision, the more likely it is that the desistence, if you like, is going to be frustrated. The earlier you can release, the better you can support re-entry, but, of course, if you're not confident that you can safely release, you have to hold. It's in the discretionary period, which I would say is between 50% and 75%. That's a long period, potentially to incentivise a long-term prisoner to engage with the parole board. If they don't do enough and they have to be released at the 75% period, it's still a long period of supervision during which the social worker can work to secure engagement and to reduce risks constructively, as well as supporting re-integration. My honest feeling about the current proposal is that it's certainly better than the first draft. It clearly improves the situation. It deals with cold release up to a point. Six months will help a significant proportion of those that the bill will affect to a certain extent. Will it secure their re-integration? I doubt it. As long as their re-integration isn't secured, public safety isn't ultimately served, we don't live in a perfect world. There are some people for whom no amount of supervision is going to secure re-integration, and there will always be risk after the criminal justice system steps back and says that we have no longer the authority to interfere in your life. However, my belief is that a longer period of supervision, particularly for long-sentence prisoners, is more likely to support their desistence rather than less. I really think that it's important that we focus on the question, what problem is this bill trying to solve? Yes, but we answered that part of the question, and that part is about public safety. That's what it's striving to do. I suppose that what I'm telling you is that I don't think that in comparison with the current system, I'm not at all convinced that this makes the public any more safe. Although I can only hypothesise, based on my understanding of people's progression towards desistence from crime, my hypothesis would be that being held longer and being released after a longer period of imprisonment, with all the disruption and problems that that causes, to a short period of support where I know that the social worker is disappearing in six months, I don't think that I'm heavily incentivised to engage seriously with that social worker by that. I think that I'm going to formally comply, I'm going to show up for the appointments, get through this and get him or her off my backing out of my life, and then I'm going to carry on. I don't think that that's the best way to secure public safety. There could be an explanation of why so many people said three months. It's maybe having a shorter period regarding cost, with quality of programme. You maybe have a better quality programme, particularly that we said that things are going to change and there's going to be progress in prison first and foremost. Can we have a very good year programme system involved? Is this system involved? Is a six-month period in fact a good balance? We know in general terms from the evidence base that programmes to registry of ending work better in the community than in prison. There's a very obvious reason for this. It's that when you're trying to learn skills that you're going to use in the community, it's easier to learn them in the community because in between sessions you can practice. If you do a prison-based programme, you can learn skills for tackling the problems that you'll face outside but you can't really rehearse and embed the learning. It's a bit like the challenges that students face when they're trying to take classroom learning out onto placements in vocational courses. Same sort of transfer. A longer period of supervision where more work to support rehabilitation programme work and individual work can be undertaken in the context and the environment where the learning needs to be applied stands better prospects of securing reductions in risk than prison-based programmes in my assessment. That's an evidence-based point, which I think from a scientific point of view I can support as opposed to hypothesising. I know that community-based programmes generally have better outcomes to registry of ending. That's not to say that we shouldn't do lots of work in prison to prepare people for release and to address the issues that we can address while they are inside. But the key thing is to get the money out of the jail and into the community so that the programmes, and I don't mean programmes just in the narrow classroom sense, but programmes of support, if you like, can be properly resourced and properly delivered by trained professionals supported by third sector organisations, supported by community organisations, doing advocacy, building bridges, making connections, securing essentially a sense of belonging to community, which is what ultimately sustains people's desistence from crime. Which I put it to you, it would be easier for people who will be really starier in the description of your opinion. There's no questions, the Parable Board and some prisoners will be quite happy to engage and to do that. The problem is the one who wanted to max out and the best one we really want to deal with. The ones that want to max out are going to be difficult to engage in any context to accept that, but I don't think that that in itself means that it makes more sense to hold them longer. I also think that by keeping calling it releases, because we know it's a continuing sentence, and as I understand it from the Cabinet Secretary, different conditions, so we didn't delve into that, would be attached to this period in the community. Maybe we should have gone further into what conditions we're talking about. It would be much more helpful if we thought of release as being release from the order or release from the sentence, but obviously we think of walking out of a prison gate as the end of the sentence, and clearly it's not, and nor should it be. And also there's recall. We never went into whether you'd be tagged or whatever things would be required. It could be quite quite onerous. I think that this is also being driven home to me by research that I'm currently conducting with people subject to supervision in a number of European countries, and we grossly underestimate the pain of being subject to that suspension of punishment and the prospect of being recalled at the discretion of another person leaves the released person exceptionally vulnerable and insecure. Now you can say from a justice point of view, well fair enough that's part of your sentence, and you've conducted yourself in such a way that the state has the right to exercise that power over you and is doing so now to protect others, but we shouldn't underestimate what it feels like to be not quite at liberty, to be having the sort of Damocles dangling over your head continuously is no small suffering. Would be helpful to describe it as such publicly. That's the system's very poor at explaining itself. What we call the sort of Damocles, I know you don't mean that. Yes, because I've got John and Alison waiting. Wording is very important. What do you think, Professor McNeill? Have we removed automatic early release if this bill goes through? As we know it, do you think the word automatic will slowly and surely get away from the language? I doubt that the political opponents of the Government would allow them to get away with that. We're changing the regime of automatic early release with this bill, but we're not abolishing automatic early release. Manifestly it continues, but now it's fixed at six months. That's automatic. For a few amount of people, and especially for the max out one? Well, how many people are affected by it depends on the judgments that the parole board make and how conservatively they apply the risk criteria, so we don't really know the numbers because we don't know how they will weigh the two risks. This is maybe a better way of thinking about it. There's the risk of releasing now, and there's the risk of not releasing now, which is that we're storing up a bigger problem later. So it's not risk versus no risk, it's risk now or risk later. I think that how exactly parole board decision making is influenced by this change in the timing of early release, I'm not sure we can predict that. John Lennon, I don't know if you've had the opportunity to see Dr Monica Bary's evidence to us, and she touches on many of the points that you alluded to there and the pressures of people on supervision. It seems that there are a number of issues at play here that are told that the Government wished to reduce the prison population. Clearly more resources would be required to be transferred to the community. She concludes by saying that the longer the period of supervision brackets and the greater the perception that supervision is merely monitoring risk rather than proactive support, the more likelihood of breach. You argue for longer, can you explain that? If I'm reading Dr Bary's submission correctly, she's not arguing against supervision, she's talking about the character of supervision. Her current research, which I had the benefit of hearing about last week at a conference at Strathclyde University, the concern that she's expressing based on her findings is that released prisoners are experiencing supervision as nothing more than monitoring and control, when in fact they have very significant needs for support in terms of reintegration, which in their view are not being met, so they're being asked to comply with a regime of control, but they're not really being incentivised by being offered support that they find meaningful. She talks about proactive support that they should be given. Do you understand what that might involve? What proactive support would involve essentially, and this is where Pete White's voice would be particularly useful, it means going to the person who's to be released during the prison sentence and having a thorough discussion about what their post-release plans and prospects are, who's important to them, what kind of resources and supports they have in the community, what personal resources and assets they have in terms of their skills, their abilities, their ambitions, their previous education, their future plans, and really trying to work creatively and constructively with that individual to develop a shared release plan, which is based on navigating what is going to be a difficult transition. That's not the same thing as going to the person and saying, my tool tells me that you have five risk factors. These risk factors must be addressed in order for you to be released. After release, we will seek to manage these risk factors by controlling your access to x, y or z, or by putting you on a tag, or by making you submit to restriction. One is kind of educative and facilitative and proactive in the sense of trying to identify the resources, identify the needs and work with the person to provide the best possible resettlement package, which I also think is a human right, as I've explained to you previously. The other is a system of control that is designed, if you like, purely to protect the public and not to address the prisoner's needs unwittingly. It fails to protect the public because the two things are symbiotically related. You seem to be describing what might be an individual risk assessment. Would that not suggest an individual disposal for that, rather than one that seems to be based simply on the arithmetic of you being here for x, or that means x here? The current system involves individualised assessment of risk and need. It maybe doesn't look so closely, as I think it might, at strengths and resources and positive assets that a person might bring, although the organisational review of the prison service is trying to move in that direction, partly informed by the sorts of research that I've been involved with myself historically. It's more than risk assessment, though. Risk assessment, if you like, identifies problems and needs. It gives some guidance on what the social worker or the prison psychologist or whoever is involved might do to how they might best target their efforts. However, the problem with the way that risk assessment is used is that often the professionals under the pressure of public scrutiny about managing risk completely assessment to identify what the risks are, and then they develop a plan to manage the risks. That's not the same thing as reducing them. I'm meaning risk assessment small r, small e and individual, and of course that would consider all the positive factors that should be informed. It may come out that five months would be suitable for one person and seven for another. I wonder if that tariff scheme ignores the individual. Any threshold that is set, whether it's set proportionately or whether it's set by a fixed time period at the end of the sentence, runs that risk. That's a question of balance. If you have a system that is entirely discretionary, the problem is that you leave a lot of power in the hands of professionals who are making subjective judgments, which under the pressure of public scrutiny can become more and more precautionary and defensive, delaying and delaying and delaying release and leading you back to your maxing out problem. I would still support the idea of proportional thresholds that basically say, okay, we've held this risk as long as we can hold it. Now our job is to get out in the community and reduce it. I think it's, Doctor Barry, forgive me if it's not. It might be either of yourself. I want you to comment on the view that professionals in this field are risk averse for the very reasons you've outlined. Again, I'll answer briefly on what my colleague can give his opinion. Certainly, the impression I gained from the evidence that was presented at the conference in Strathclyde last week would tend to suggest that the balance between the need to take risk to reduce risk, the proactive attempt to engage in strategies that give us confidence that skills are being acquired. Just like in child rearing, you get to stage with your kids where you have to let the rope out a bit in order to see if they've learned. Similarly, in this context, if you hold too tight and overprotect, you run the risk of diminishing the capacity of the person to manage themselves effectively. I think that the evidence from Doctor Barry and Doctor Weaver's study at Strathclyde tends to suggest that the system has begun to move a little bit too far in the precautionary direction. That's my impression, but, as a social scientist, I should be careful to separate my impression from what I think I can evidence empirically. I'm not sure I can evidence that empirically. Certainly, recall rates have gone through the roof, and the McLeish report is very clear on this. A massive increase in the number of people who are being recalled to custody even before 2008, and I think that the numbers have continued to rise to a certain extent. It seems as if something has changed, and it's not obvious that it's the conduct of the people subject to supervision that have changed to put it that way. There's no respite from the press if that's the real court of law, isn't it? If, as you're quite rightly saying, it's a question of risk, a minor risk taken by those managing the system and those who are within it to under the supervision, one little slip, and there's no escape. I can understand why people, social workers, have to cover them back so much. I've been in the position when I was a practising social worker of having to make those calls, and it's extremely demanding work, and it deserves to be much better respected and supported than it is. But what I would say is that we all collectively have a responsibility in my current job for elected members, for all aspects of civil society, to contribute to that debate, rather than hiding from it. To a certain extent, social work profession needs to advocate for itself and to be more confident and assertive in its engagement with public debate. Some of the Government's other reforms, for example in relation to the new community justice measures, will help to provide national leadership that can enhance the quality of the data. That's coming to us as well, actually. In due course. We volunteered to take it, even though that would be our sixth bill. You are clearly gluttonous for principle. Professor Tanta. I don't really have a lot to add. I think that Professor McNeill has explained that very well and very eloquently, or just to put it bluntly, I suppose, that having a system of mandatory release kind of saves parole boards from that dilemma that Professor McNeill was outlining. It allows them to say, okay, we're not going to get the blame for that. Someone has to be released, and there's a good reason why they have to be released at a certain point, because it serves public safety. Thank you. You get one final question for me. I actually thought Professor McNeill was seeing something different. I thought he was talking about the way, if we proceed with this, with mandatory, a community part of your sentence, that there has to be a different way of managing the individual who's out, which isn't to do with, and I think John made the point quite rightly. It wasn't risk assessment in capital letters. It was to do with more engagement. Obviously, there's that part of it, but more engagement with what would cure, what would help that individual along the way as well in a different way. That does involve social work at sometimes taking it, and I don't want to use the word risk, but making a judgment call that they feel free to be able to do in those circumstances, when I practically put it like that. Is that correct? That's a summary of what I said. That's correct, but I also agree with what my colleagues have said. I didn't want to cause division, but I know you're doing so well together. Yes, sorry, John. Thank you. It's just to take you back briefly, Professor Tata, to your comment about the human rights aspects of this. The Government seemed very relaxed about it, as you suggested. That relaxed position isn't shared with the Scottish Human Rights Commission, nor indeed the Howard League's comments. Could you maybe just comment a bit more on that? Just because something hasn't, as yet, been subject to challenge, doesn't mean necessarily that it ticks all the boxes? I think you make an excellent point, John Finnie. At the end of their notes from last week, there's a very brief paragraph from the Scottish Government that says something like, we see no case law, and they chose the word about determinant sentence prisoners, which would cause a problem in terms of having fair opportunity to access programmes in prison to show you not a risk. Of course, the case law that there is is about indeterminate sentences. I think it's unlikely. I see no reason of principle why that idea, that principle where the courts have said there has to be fair opportunity when they were presented with an indeterminate case. I'm thinking, for example, about the case of James and others, that that principle wouldn't be extrapolated to determinant sentence cases. So if you take someone and there will be the desire and the will, understandably, among people sentence to lengthy periods, if you're sentenced to a period of 12 years, you would have been getting automatic release by what, eight years. You may now, if you can't access programmes, you don't feel you've been given fair opportunity to show you're not a risk, you're not getting out to 11 and a half. So three and a half years extra. Those three and a half years, you're going to say, this is not fair, you're going to have a burning sense of injustice. Who wouldn't? I would do. If it was the case that you didn't have fair opportunity to access and to show that you're not a risk. So I think that the note there is a little bit too relaxed and I think lawyers who deal in this area would confirm that to you. We have been here before, sometimes with human rights legislation where governments have said in the past, oh not a problem, not a problem, stick your head in, stick the heads in the sand and the problem comes up later. I don't think that note is quite enough. I think we need to think more carefully about it. The principle is a really simple one, fair opportunity to make your case. If you're not given fair opportunity, then there's going to be a sense of injustice. I think that will come. Just to make it an obvious arthmetical point, at the moment one of the reasons why I determined that sentence prisoner might not seek to litigate is that we're only talking about the difference between 50% and 66%. Under these measures we're talking about the difference between 50% and well something approaching 100% eventually as the sentence has become very long. So again, if I were a prisoner serving a very long sentence who was unhappy about access to rehabilitative support and not just programmes in the custodial context and I'd got past my halfway point and I didn't feel that I was being supported to make progress, I would be consulting my lawyer and so I think I should. Just a brief word to say, it's bound to have some effect on the ability to manage prisoners who feel upset, angry, feel they've been treated unjustly. I don't know if Mr Cameron's coming with a supplementary or just... I would have thought that the Scottish Prison Service will be acutely aware of these issues and acutely aware to try and avoid the position where they ended up at the wrong end of litigation in the courts. I'm sure they would be but it's not really the prison services responsibility, this is the Government. Pitched in there, Alison? Professor MacNeill, do you think it would be feasible to put on the face of the bill this sort of description of what you think licensed conditions or the time served under supervision in the community would actually look like? I actually don't know the answer to that question because I'm not a tall expert in the parliamentary process, so I'm not sure how far amendments to a bill as presented can go towards altering its focus or purpose, probably not very far, and that's why in earlier evidence my instinct was to start again, so I'm afraid I can't really be clearer on that. Okay, thank you. It's something we're looking at. I know that there is an amendment to the long title and leave out from then to send it down to amend the rules for prisoners on license, so that's really all, but I don't know whether that would be changing the purposes of the Bill, Alison, so I think that's an issue perhaps that if you want to raise the couple of examples, I think that you could very clearly, anybody I presume, could propose an amendment which said, no, let's have the current system where we have 50% is the point at which you become eligible for consideration for parole, and let's have mandatory release at 75%, and let's put an amendment to that effect before the Parliament. Well, that could be done, but it couldn't be done in a way that would address the problem of transparency because we understand you could change it from six months to something else, but I don't think we could, I don't know if it's possible whether we could insert something which said, and now a custodial sentence is to be called, a custodial and supervision sentence, or I'm not sure. Right, have we exhausted questions? Anything else you want to raise with us that we haven't asked? Professor Tata, you're taking a deep breath, something coming. Well, I suppose, you know, I have to ask the question, why are we doing this? Well, we've had that, we've had that bit, that message loud and clear. So the very bit of the system that works best is going to be squeezed back, and the cost of it is going to take the majority of the current community justice budget. The Government says that it wants to work towards penal reduction, there seems to be a degree of consensus cross-party around that, and yet, the concrete measure we have here is to do quite the opposite. Now, projects like, I think the Cabinet Secretary may have mentioned the Tomorrow's Women project, for example, in Glasgow, the great project came out of the Angelini Commission's report. Now, their budget, as far as I know, remains incredibly precarious, so while we're praising the work that's done there, they have no long-term funding, the one bit of the system we're going to guarantee for greatly increased funding is the prison service. Now, none of that is criticism of the work that's been done in prison. It might be even worse after we hear what's announced in terms of the budget for the Scottish Parliament coming along, you know, bear with me on that. So why spend so much more, the £30 million, on a bill that the evidence suggests is going to reduce public safety, that is not going to abolish automatic early release, or anything like that? That's a very brief question. If we were going to remove the six months and substitute a percentage of the sentence, what would your advice be in regard of what that percentage would be? Minimum 25 per cent now. I think that came through some minimum 25. I think 50 sounded a bit big, but 25 per cent I think was... Well, can I thank you very much? As usual, stimulating, interesting. It was almost like a legal seminar where Mr Camp was about to jump in the debate rather than question, but that's fine. Thank you very much. That ends the session and I formally close the meeting.