Kenny MacAskill: Sentencing must not be driven by political rhetoric

A few years ago when I was Justice Secretary, I was dining with one of Scotland's most senior law officers when we were joined by a friend who was a Scandinavian businessman. He narrated how his brother who ran a nightclub in Sweden had been brutally slain by an off-duty soldier. The killer had been refused entry to the club, went home and returned to the club with a machine gun which he discharged to deadly effect.

Sentencing of convicted criminals must be left up to the judge, who is best placed to do so

Both the law officer and I were gobsmacked to be told that the sentence imposed was only five years in prison. But that was the way in Scandinavia, where Norway had to make legal changes to avoid a derisory sentence being imposed on Anders Breivik for the killing of 77 people in 2012.

Both the law officer and I advised that a sentence of at least four or five times that tariff could probably be expected in Scotland. But sentencing has returned as a political issue in recent weeks with the Tories demanding whole life sentences. That’s when a Judge specifies that the rest of someone’s life will be spent in custody.

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This mechanism doesn’t apply in Scotland although a sentence can be imposed that will in effect be for the rest of someone’s natural life. In Scotland, murder carries a mandatory life sentence. The reporting that appears of someone getting 15, 25 years or whatever is the punishment part of the life sentence. That’s the minimum period to be served before being eligible for parole.

The sentence is imposed by the presiding judge who has background reports and a victim impact statement, the latter being a long overdue opportunity for families to be heard. Does the judiciary always get it right? No. But there are built-in safeguards in the system, from guidelines through to an appeal by the Crown if the sentence felt to be too lenient. It’s a hard job being a judge. It’s a difficult and complex task, and there’s often much more than what’s reported for the basis of their decision.

Victims and their families don’t always agree with the sentence imposed. That’s understandable, as grief affects people in different ways. The hardest part of being Justice Secretary was dealing with the victims of crime, especially when something had gone wrong and justice wasn’t done. Some would be angry and others upset. Some sought revenge and others change. It wasn’t easy, and was often distressing. But sentencing decisions are taken - correctly - by the judiciary not by government ministers or politicians.

Those sentenced can subsequently be released by the parole board. But in my experience, it will be a while after the punishment part has expired before the parole board will even consider an application. Moreover, if granted paroel, and offender will be on a lifelong licence which carries restrictions on their actions and can be revoked at a moment’s notice.

Whatever some may think, the parole board isn’t made up of limp-wristed liberals but thoughtful people, conscious of the dangers many pose. The Parole Board get most of the big calls right and deserve credit for it. It’s hard for them, as no-one reports those who haven’t reoffended, only those who do.

There are very few who pose such a threat that they may never be released. For most others, there is the likelihood of release at some stage - not after a Scandinavian sentence of five years, but after they’ve served the punishment part of their sentence and are viewed as not posing a high risk.

The recent grandstanding by the Tory justice spokesperson ignored many of those procedural facts, and the consequences for the prison service who have to deal with prisoners for whom there is no release and no reason to behave. For some, that’s just how it has to be but they should be few, as the challenges can be many. The Tory spokesperson also ignored the reality that in my experience the most dangerous individuals are not those on a life sentence or life licence. They, after all, can either be detained or recalled.

The most worrying are those known to have a propensity for serious offending and yet who haven’t committed an offence or have been released for a lesser crime without restrictions. There’s no jail for thought in this land, but those who we know are thinking of crime and have the capacity to do it are the real dangers. I recall several cases of huge police resources being used to monitor such individuals. It was for that reason that Orders for Life Long Restriction were introduced. They can be imposed in addition to another sentence to ensure that individuals are detained until there’s some assurance that they don’t pose a risk. Given their nature, they’re used sparingly. But those are the really dangerous individuals, though they carry less headlines. That’s where resources need to be targeted.

Moreover, I always found that politicians who thundered the most about toughness and demanded retribution invariably knew and had experienced least in terms of offending. There was almost an inverse relationship with political courage. Sound bites cost nothing.

Those who were the most gentle and knowledgeable had endured or understood. I recall being privileged to meet Albie Sachs when he was on the South African Constitutional Court. He’d experienced solitary confinement and suffered horrendous injuries through a car bomb perpetrated by the apartheid regime. He was a formidable but compassionate man whose talk about meeting one of the South African agents involved in his bombing was humbling. Not for him the macho talk. He was prepared to listen, reflect and indeed ultimately absolve. South Africa is a better place for it.

There needs to be an appropriate punishment for murder. But it must be imposed by a judge with all the facts before him or her, not driven by political rhetoric. Prison must seek to rehabilitate for all bar a very few who need to be detained indefinitely.

For most, there must be hope of release some day and for society a belief in the possibility of an individual’s redemption.