MSPs weighing up Suzanne's Law should be clear on what it means

The National

2 days ago

Introduced to Parliament more than two years ago, the Government and MSPs are considering final amendments to the legislation. This is the last chance for politicians and campaigners to shape the final flagship criminal justice reform of this SNP administration.
One proposal featured prominently in the media last week. Sponsored by the new LibDem MSP Jamie Greene and backed by Victim Support Scotland, 'Suzanne's Law' would require the Parole Board to 'refuse killers parole if they withhold the location of their victims' bodies'.
The amendment is named after Suzanne Pilley, who disappeared in 2010. David Gilroy was convicted of her murder in 2012 but remains tight-lipped about where her body might be.
Relatives of Pilley and other families who have lost loved ones – and remain in the dark about where their bones are interred – gave a powerful press conference in Glasgow last week, describing the predicament as a 'form of mental torture'.
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They argue the uncertainty about the fate of their loved ones makes that elusive thing – 'closure' – even more difficult to find.
Homicide convictions are not common but have featured prominently in a number of high-profile documentaries from High Court murder trials in recent years.
They range from the disappearance of Arlene Fraser and the subsequent prosecutions and convictions of her husband Nat in 2012, to Margaret Fleming's disappearance from Inverkip, resulting in the conviction of Edward Cairney and Avril Jones in 2019, despite the lack of a murder weapon, physical evidence proving how murder could have been committed or even physical evidence establishing that Fleming had passed away as a result of foul play.
To understand this campaign, you need to understand something of the law as it currently applies. If someone is convicted of murder in Scotland, the court is required to hand down a life sentence.
The judge sets what is normally called the 'punishment part' of the sentence, which is the minimum period of time the prisoner will remain in custody before being eligible to apply for parole.
Decisions on whether or not to release life prisoners from custody are made by the Parole Board. The board is composed of a mixture of legal and criminal justice professionals and is independent of government.
Their key role is to 'ensure that those prisoners who are no longer regarded as presenting a risk to public safety may serve the remainder of their sentence in the community on licence under the supervision of a supervising officer'. In taking these decisions, the Parole Board is concerned with risk to the public – not further punishment.
News reports suggest that in response, Cabinet Secretary for Justice Angela Constance has accepted some kind of amendment to the parole rules which will require the board to treat non-disclosure of where a victim's remains might be found as a factor in decision-making.
While details haven't been published, this would fall short of the principle of 'no body, no parole' requiring the Parole Board to automatically refuse to release a prisoner who won't provide information about what happened to their victim.
This proposal has been met by some sceptical responses from parts of the legal world. The first argument is: there's no point in introducing laws like this. Speaking to the media last week, lawyers pointed out that Parole Board rules already direct them to consider whether or not the prisoner has revealed the whereabouts of their victim's body.
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On Radio Scotland, advocate Edith Forrest rightly pointed to Rule 12 of the Parole Board Rules which already applies to parole hearings involving someone serving a life sentence for murder or culpable homicide.
Where the Parole Board 'does not know where and how the victim's remains were disposed of' and believes the prisoner 'has information about where and how the victim's remains were disposed of' then it can take this into account in terms of deciding whether or not to release them on licence.
This looks, as Forrest says, much like the rules which the Scottish Government is now proposing to add to the statute book. Holyrood has, yet again, been caught relegislating for things the law already deals with.
Jamie Greene's response is he thinks 'it's important to get this stuff in black and white on the face of legislation'.
But there are other reasons why MSPs would be wise to approach introducing rules like this carefully. As the name suggests, the whole campaign is premised on a particular scenario: a factually guilty person, behind bars, maliciously refusing to yield information about their victim's final resting place, presented as a form of coercive control beyond the grave, or as a further act of spite to rub salt into the wounds of families broken by grief.
Presented in this way, who could reasonably object to the idea of keeping dangerous characters like this in custody? But try looking at the proposal from another angle. Try thinking of this not as Suzanne's Law but just as a law which will apply to all kinds of prisoners. While Greene's proposals might answer a sense of justice in one context, they are guaranteed to create more injustice in others.
In the miscarriages of justice literature, this is sometimes called the 'innocent prisoner's dilemma'.
Consider the case of Andy Malkinson, by way of illustration. Malkinson was convicted of rape in 2004. The conviction relied on the evidence of the victim, who picked Malkinson out of a life-up, saying she was '100% sure' he was the man. She was mistaken. He was convicted by majority verdict and sentenced to life imprisonment. The judge set the punishment part at six years and 125 days.
Subsequent forensic re-examination of the victim's clothing found DNA matching the profile of another man on the national database. On the basis of this new evidence, the Court of Appeal in London finally quashed Malkinson's rape conviction as unsafe in the summer of 2023. He spent 17 years in custody.
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Failures in the handling of Malkinson's case have now precipitated the collapse in the leadership of the Criminal Cases Review Commission. The CCRC is responsible for reviewing potential wrongful convictions in England, Wales and Northern Ireland.
But there was another step in the criminal justice process which helped keep Malkinson in custody for 17 years: the parole process.
Although eligible to apply for release on license after spending six years and 125 days in custody, the Parole Board applied a principle like Suzanne's law to his case. In essence, it said: if you don't admit you did this, we're going to leave you in prison until you do. Rules like this demand of wrongfully convicted people an impossible question: which is more important to you, the truth or your liberty? Choose.
As the Court of Appeal explained in its 2023 judgment vindicating Malkinson, 'throughout those many years', he 'adamantly maintained that he was innocent of the crimes and had been wrongly convicted'. And 'he did so in the knowledge that he was thereby delaying his release from prison' – for years, and years, and years. This is the innocent prisoner's dilemma.
Malkinson described it as his catch-22. If he just admitted to committing the rape he was convicted of and went through the dishonest motions of engaging with the behavioural programmes in prison requiring him to reflect on his wrongdoing, he'd have been released from prison long before he was.
If he refused, more years were guaranteed to pass him by, protesting his innocence in custody.
Similar considerations apply to Suzanne's Law. You can't give the authorities information about a murder you did not commit. You cannot specify a deposition site if you didn't kill your victim.
Given the small numbers of people involved, perhaps you're comfortable with a utilitarian calculus which sees a small number of innocent people like Andy Malkinson spending more time in custody for crimes they did not do, if it visits lengthier punishments on guilty men, determined to inflict a final twist of the knife on families they've already bereaved. In backing this campaign, that's the choice MSPs will be making.