SCCCJ publishes response to Scottish Government Consultation on strengthening the presumption aganist the use of short custodial sentences
Sentencing & Penal Policy in the New Scotland: Consultation on Extending the Presumption Against Short Custodial Sentences
Dr Cyrus Tata, Professor of Law & Criminal Justice, Strathclyde University
In post-referendum Scotland it is widely suggested that this may be a moment to move away from Scotland’s relatively heavy use of imprisonment. In its efforts to reduce radically the prison population there seems to be real intent by the Scottish Government to shift the emphasis from prison to community penalties. To try to achieve this, the Government has deemed it necessary first to restrict mandatory community support for and supervision of long term prisoners – a move which could make the overall task more difficult.
Currently the major tool in the Government’s reform box seems to be the extension of the presumption against ‘ineffective’ and ‘unnecessary’ short custodial sentences. But will such an extension work? This paper argues that the extension of the presumption is likely to have little impact by itself.
Additional options include: relinquishing the policy of ‘custody as a last resort’ and instead making other penalties ‘the ultimate sanction’ (including for breach); creating a public principle which ensures that no one goes to prison for want of anything to address their needs; more creative use of Electronic Monitoring; making certain kinds of cases normally non-imprisonable.
A New Penal Era?
In its desire to ensure that Scotland has “the most progressive justice system in Europe”, the Scottish Government is committed to a radical reduction in the prison population. While successive administrations have made this their aim, there now appears to be greater intent. The Justice Secretary has said, for example:
“I truly believe that there is no good reason why Scotland should have such a high prison population. Of course, for some individuals – people who have committed the most serious offences and those who pose a risk to public safety – prison remains absolutely necessary. But for too long in this country prison has been seen as the default sentencing option when someone breaks the law.”
Currently, Scotland has one of the highest proportionate rates of imprisonment in western Europe. The current Justice Secretary, Michael Matheson, has described this position as “totally unacceptable”. He wants to radically reduce the size of the prison population so that investment can be switched from incarceration to community penalties.
A Shrewd Political Plan?
Importantly, such a switch is expected to be achieved through a more sharply bifurcated penal policy. While the Scottish Government’s decision to cancel the building of a new Women’s Prison at Inverclyde has been celebrated as a victory by reformers, it is less well known that at the same time the Scottish Government pursued legislation which will result in significantly increased prison numbers.
Planned Increases in Long-Term Imprisonment
In 2015 the Scottish Government, eschewing any consultation process, pushed through new legislation purporting to abolish so-called ‘automatic early release’ – a term which derides the reality of guaranteed conditional support and community supervision of people released after long periods of incarceration, so aiding public safety.
The Prisoners Control of Release (S) Act 2015 will radically cut the mandatory period of support and supervision of those long-term (ie four year plus) prisoners deemed too risky to release through discretionary parole. The financial implications of the Bill are considerable. At the time of the passage of the Stage 2, the Scottish Government estimated that the annual additional cost of changing the current system of automatic early release for all long-term prisoners will rise from £4.6m in 2019/20 (when it begins to take effect) to £16.7m by 2030/31. To put this in context, the projected annual cost of these proposals in 2030/31 represents more than half of the Scottish Government’s current budget for community justice (£31.8m in 2015/16). Importantly, this estimate does not appear to take account of the likely consequent increased use of Extended Sentences. As a direct consequence of cutting the mandatory period of community supervision to just six months, the Scottish Government appears to expect that judges may impose more Extended Sentences so as to ensure that individuals are monitored, supported and supervised for a longer period of time than six months.
When asked in Parliament, the Cabinet Secretary for Justice indicated that these costs would be met by savings made by
“other changes that are to be introduced in the system, such as a presumption against short sentences, greater use of alternatives to custody, changes in sentencing practice…and alternatives to the traditional custodial estate”.
So the thinking is that this intended increase in prison population can and will be counteracted by a radical approach to dealing with short-term prisoners.
The political strategy will be familiar to seasoned observers of penal policy: look tough on serious offenders in order to de-carcerate at the lower end.
Being tough on long-term prisoners is, of course, the easy bit. Now for the hard part: until now little headway has been made in Scotland in the quest to reduce the use of imprisonment at the lower end (nor south of the border which has tried similar political strategy).
Presently, extending the presumption against short custodial sentences appears to be the main tool in the Government’s box.
Hitting the Target : Sentence Length or Case Seriousness?
Importantly, the argument for reducing the prison population tends to be based not only on its relative ineffectiveness compared to non-custodial sanctions in similar cases. It is also based on a claim about proportionality: that imprisoning some people for some kinds of offences is unnecessary, disproportionate, and therefore a waste of money. Indeed the view can be traced back at least as far as the 2008 Prison Commission report which argued for the reduction in the use of short prison sentences on grounds of proportionality and that prison should be reserved for those committing the most serious offences and those posing a risk of serious harm. So in other words the real problem is not short-terms of imprisonment per se. Rather, it seems that the Presumption policy is using length of imprisonment as a proxy for those cases deemed less serious or posing a lesser risk of serious harm. But length of sentence is a very crude proxy for seriousness of offending and risk of serious harm. Arguably, it would be a more direct and clearer method to specify the kinds of cases which, as a matter of proportionality, would be normally non-imprisonable. This is the sort of careful work which could be led by the Scottish Sentencing Council in drafting Sentencing Guidelines.
That said, the immediate option being presented by the Scottish Government is to extend the presumption against short custodial sentences. So let us examine the likely impact of extending it.
What difference will Extending the Presumption Make?
Currently, there is a presumption against sentences of three months or less. The question being posed by the Scottish Government is whether this should be extended from three to six, nine or even 12 months. According to the Government’s own commissioned research, the three month presumption has “has had little impact on sentencing decisions.” One reason is sentence inflation. Rather than passing sentences of say three months, some sentencers, appear to have passed slightly longer sentences. This phenomenon, predicted at the time of the passage of the legislation, has been found in other countries.
If the presumption against sentences of three months has not worked should the presumption be extended?
In the same way as the three month presumption has had made little net difference, so a longer period is unlikely to make much difference. Indeed, given that the main effect has been inflationary it would seem futile to extend it to anything less than 12 months – consistent with maximum summary powers. Yet even if the presumption is extended to twelve months, it may still not achieve much.
To understand the problem, let us remind ourselves of two things. First, fresh legislation is not being suggested by the consultation. An extension to the presumption will be achieved by altering the number of months by statutory instrument. Secondly, we therefore need to examine the relevant legislation. Section 17 of the Criminal justice and Licensing (S) Act 2010 states:
“A court must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate.” (emphasis added)
All legislation contains caveats, of course. Yet, the caveat in section 17 could hardly be more permissive: the sentencer must not impose a sentence of x months or less unless s/he considers it appropriate. Does any sentencer, (or for that matter anyone), make a decision which she or he considers inappropriate?
To put it crudely, the legislation states: don’t do something unless you consider that you should do it. Little wonder then that “there there was little sign of [the presumption] figuring prominently or explicitly in decision-making”.
It should be recognised that section 17 includes a requirement that where a court passes a sentence in excess of the presumption limit,
“the court must: (a) state its reasons for the opinion that no other method of dealing with the person is appropriate, and (b) have those reasons entered in the record of the proceedings.”
However, this is hardly a challenging requirement. Compliance can be fulfilled simply by noting a non-custodial sentence was ‘not appropriate’. Indeed, consistent with previous research we should expect that in such circumstances the reasons given for such decisions are likely to be bland, uninformative, and routine.
So we should expect that the extension to 12 months is unlikely to have much effect on sentencing practice: at best it is a reminder to sentencers of the existing injunction that custody should be ‘a last resort’.
Why, then, do sentencers believe it is appropriate to pass short custodial sentences? The answer lies not, as is sometimes suggested, as a wilful disdain for the intention of Parliament nor with a wholly irrational fixation with custody.
There are two main reasons in the minds of many sentencers: first, a widespread perception of insufficiently credible and community-based sentences compared with imprisonment; and secondly a feeling that there has to be ‘a last resort’ for those who do not comply with community based sentences. Let us briefly examine these two concerns.
Concern 1: The Credibility of Community Sanctions
That non-custodial sentences are not considered by sentencers (or others) as credible, robust, visible, or immediate as imprisonment is hardly new. A major difficulty is that prison is perceived in our culture as ‘the only real’ punishment. Unlike community-based ‘alternatives’ prison is visible, easy to understand, and culturally iconic. Thus prison is synonymous with ‘real punishment’ everything else is judged as alternative against ‘prison-like’ criteria. Even the term ‘non-custodial’ tells us that these sanctions are defined as the absence of prison. So anything other than prison is, to some extent, destined to be judged as ‘less credible’.
However, social (and practitioner) attitudes change and attitudes to what is ‘real punishment’ are, as we can see, judged as relative to each other.
The Policy of ‘Custody as the Last Resort’ Means Custody is the Default
The cultural centrality of prison to punishment is nourished and reinforced by policy and legislation which deems prison to be ‘the ultimate sanction’. Indeed the prevailing approach that ‘custody is a last resort’ ends up meaning in practice that custody becomes the default. When other options don’t seem to work, there is always prison. When one runs out of options, there is prison. The language of ‘last resort’ in effect renders prison as the default. All other options have to prove themselves to be ‘appropriate’ and if they fail to do so, there is always prison. Prison is guaranteed and seen as ever-reliable. While non-custodial sentences and social services seem so stretched, imprisonment, on the other hand, appears as the dependable, credible and well-resourced default. As one sheriff interviewee put it:
“ ‘really when I’m imposing short [prison] sentences, that’s when we’ve run out of ideas!’”
The language and mentality of custody as ‘the last resort’ is a central problem. We need to relinquish it. Little will change unless and until we invert that thinking by beginning to specify certain circumstances and purposes as normally non-imprisonable.
Just as the death penalty (and other forms of corporal punishment) was once ‘the ultimate sanction’ and prison was seen as lenient, so making another sanction (for instance Restriction of Liberty Orders, or meaningful reparation to the victim) means it, in turn, will come to be seen as ‘real punishment’. To move away from prison being seen as the only ‘real punishment’ we will have to relinquish the policy paradigm of prison as ‘last resort’
Imprisonment and Personal Needs
Although it is uncomfortable for us to admit it, as a society in many instances prison continues to be used not because seriousness of offending (harm or denunciation) demands it, but because nothing else seems to be appropriate. For instance, as a society we are using imprisonment in part to access services for those who have not committed serious offences but because of the unpredictable and seemingly ‘chaotic’ lives of many of the poorest people in our communities. Many people end up in prison not because their offending is particularly serious, nor because they pose any significant risk of serious harm. They end up in prison because there does not appear to be anywhere else that can address their chronic physical, mental health, addiction, homelessness and other personal and social needs. While non-custodial sentences and social services are so stretched, imprisonment, on the other hand, appears as the dependable, credible and well-resourced default. Indeed, it is not entirely uncommon for people to say that they would prefer to be in prison because of an apparent lack of help and support in the community.
The result is self-perpetuating: resources are sucked into the seemingly credible, robust and reliable option of imprisonment at the expense of community-based programmes which appear as weak, unreliable and poorly explained.
One cannot exactly blame individual judicial decision-makers for coming to the sincerely held judgement that the only way to address the needs as well as deeds of some individuals is to impose custody (whether through remand or through sentence) because the community based services are so stretched.
This phenomenon will become even more acute, unless action is taken to preclude it. Over the next few years we will see further deep cuts to community justice and indeed the very community services on which community justice relies. Meanwhile, prisons are better resourced than they were. Thankfully, prisons are not as degrading as they used to be and the regimes are more constructive. That is of course a good thing, but the unintended consequence of these two developments, (improving rehabilitation in prison combined with the perception of deteriorating community justice), is likely to be that more needy individuals who commit (or are accused of) relatively minor offences will end up in custody. One cannot necessarily blame individual judicial decision-makers, prosecutors, social workers for seeing custody as the only ‘safe haven’ for such individuals. Yet in policy terms it makes no sense and is a dreadful waste of resources.
A Public Principle about what Prison is Not for.
A way to counteract this understandable (yet tragic) situation and preclude its likely growth is to set out a public principle that no one should be sentenced to imprisonment for their own needs (or rehabilitation). The test for imprisonment should hinge on the seriousness of offending. Of course, if while in prison, serious offenders can be rehabilitated that is a good thing. But no one should go to prison for want of services in the community. Such a principle could be set out in a Sentencing Guideline judgement and also through guidance to social workers and prosecutors. This public principle should also help to concentrate policy minds to ensure that there is sufficient resourcing of community justice and services rather than allowing prison to be the place of ‘last resort’ for those with complex needs committing relatively minor offences.
A clear public demarcation about the proper roles of prison and community justice should also help to reduce a perception of the prison service seeking to annex traditional community justice territory.
Electronically Monitored Bail
In terms of efforts to reduce the use of remand, electronically monitored bail should be revisited. It seems strange that we resort to custodial remand when EM is available as a means of control which is less stimgatising, allows the maintenance of relationships, employment, training, and is far less expensive.
Concern 2: Persistence and Breach
It is often noted that some individuals do not comply with community penalties and so custody must be the sanction to uphold the authority of the court’s decision-making. This position is reasonable.
Yet, whether we sufficiently understand the journey away from offending is important here. The lessons from the (inaptly named) desistance approach are crucial: this shows us that the journey away from crime is far more contingent than we had previously realised. Offending is not something which can be switched off like a tap. Lapses and relapses are inevitable, and the confidence of the individual that decision-makers really want him/her to succeed is important.
In this respect the increased use of review hearings (recommended by the Prison Commission and the Commission on Women Offenders) may be valuable. Such hearings can enable the judicial decision-maker and individual to build up a sense of mutual understanding and genuine respect so that neither sees the decisions of the other as arbitrary or dismissive. Currently, while the use of review hearings is permissible, they are conducted in spite of system incentives rather than because of them. Everyone has to get through their case load and the use of review hearings only adds to it.
Could Restriction of Liberty Orders be used instead of custody in the case of individuals deemed unwilling or unable to comply? Why does custody have to be seen as the ‘ultimate sanction’ in such cases? Can RLOs fill that space? Electronic monitoring should provide some assurance about control and if combined with human and humane social work support be a less damaging (and expensive) way of responding to breach?
To achieve a radical reduction in the use of custody for those committing less serious offences and posing less serious risk of harm, the presumption even if extended to 12 months is likely (at least in itself) to achieve little. There will need to be a much more radical approach from the Government (and the Sentencing Council).
Importantly, nothing much may change unless and until we relinquish the mentality of custody as ‘a last resort’. Such thinking, as we have seen, in fact renders custody as the default, a back-up when ‘alternatives’ are seen to fail.
Instead, we need to exclude certain purposes (such as rehabilitation) as a ground of imprisonment, and begin careful work to specify certain kinds of cases as normally non-imprisonable.
 Michael Matheson (2015) ‘My vision of how Scotland can change the way the world treats female offenders’ Sunday Herald 24 May 2015
 Michael Matheson Apex Scotland lecture 2015
 “Proposals for bold action on reoffending: Views sought on further measures to address ‘ineffective’ short prison sentences” Scottish Government news release 25th September 2015
 Scottish Government Financial Memorandum amended at Stage 2 SP Bill 54A–FM http://www.scottish.parliament.uk/S4_Bills/Prisoners%20(Scotland)%20Bill/b54as4-stage2-fm-rev2.pdf
 Joint Briefing and Analysis at Stage 3 to MSPs: ref xxx
 See the Scottish Government (2015) Policy Memorandum on Stage 1 of the Prisoners Control of Release (S) Bill paras 48-56 which concludes by stating: “[T]he Scottish Government considers that the reforms in this Bill….will potentially bring into sharper focus the merits of imposing Extended Sentences in individual cases.”
 Care needs to be taken in comparing the levels of reoffending in custodially sentenced cases with community penalty cases. Some of the more expansive claims made by reformers fail to compare like with like. However, careful research has shown repeatedly that non-custodial sanctions (and where possible diversion are more effective (or at least ineffective) than imprisonment. See for example: See e.g. T Chiciros K Barrick W Balles and S Bontrager ‘The Labeling of Convicted Felons and its Consequences for Recidivism’ Criminology 45(3): 547-581Moreover, because it necessitates social exclusion, exacerbates a sense of social dislocation and stigmatises for life, imprisonment makes the subsequent attempts to move away from offending all the more difficult. See also Scottish Government (2011)What works to reduce reoffending: a summary of the review of the evidence.
 Report of the Scottish Prison Commission (2008) Scotland’s Choice (Scottish Government) part 3
 Scottish Government (2015) Consultation on Proposals to Strengthen the Presumption against Short Periods of Imprisonment, p1
 Scottish Government (2015) Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences Table 7.1 pp116-7. See further C Tata (2013) ‘The Struggle for Sentencing Reform’ in A Ashworth and J Roberts (eds) Sentencing Guidelines (Oxford University Press) and Evidence of ‘sentence creep’ was also found in Western Australia where there legislation sought to prohibition of sentences up six months or less (Government of Western Australia Department of Corrective Services (2015) Briefing Note on the Prohibition of the six Month Sentence.
 Sentence inflation was predicted at the time of the passage of the Bill: Scottish Parliament Justice Committee, Official Report on Oral Evidence on Criminal Justice & Licensing Bill (2009) col 218–220.
 C Tata (2013) ‘The Struggle for Sentencing Reform’ in A Ashworth and J Roberts (eds) Sentencing Guidelines (Oxford University Press). Evidence of ‘sentence creep’ was also found in Western Australia where there legislation sought to prohibition of sentences up six months or less (Government of Western Australia Department of Corrective Services (2015) Briefing Note on the Prohibition of the ox Month Sentence.
 Scottish Government (2015) Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences at paras 52, 63, 7.25, 7.64, 8.25
 C Tata (2002) ‘Accountability for the Sentencing Decision Process – Towards a New Understanding’ in C Tata and N Hutton (eds) Sentencing & Society: International Perspectives (Ashgate)
 See the now sizeable research literature exploring public attitudes to and knowledge about punishment and the criminal justice system. For example, the Scottish Crime and Justice Survey 2012-13 (Scottish Government). For an excellent international overview see Gelb, K.(2006) Myths and Misconceptions: Public Opinion vs Public Judgement about Sentencing (Sentencing Council of Victoria); and for a challenging and nuanced discussion see for example Hutton, N. (2005)’Beyond Populist Punitiveness’, Punishment and Society Vol. 7, No. 3, 243-258
 Scottish Government (2015) Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences p128
 This argument is put forward more fully at http://ow.ly/SQAEv
 Electronically Monitored Bail was introduced as a pilot in three areas in Scotland over ten years ago when its take up was very low (Barry, M., Malloch, M., Moodie, K., Nellis, M., Knapp, M., Romeo, R., & Dhanasiri, S. (2007) An Evaluation of the Use of Electronic Monitoring as a Condition of Bail in Scotland, Edinburgh: Scottish Executive Social Research). Arguably, with advances in technology it is time to look again at how it can be used to reduce the use of remand. See M Nellis ****
 For a simple introduction to desistance, see for example, themed issue of Scottish Justice Matters 1(2) Dec 2013; and some of the policy implications are raised in a short paper by B Weaver and F McNeill (2007) Giving up Crime: Directions for Policy (SCCJR).
 Curiously, the CJ&L 2010 Act did not provide for the combination of EM with CPOs. See further Graham and McIvor (2015) Scottish and International Review of the Uses of Electronic Monitoring SCCJR and more generally Nellis, M. (2014a) ‘Penal Innovation and the Imaginative Neglect of Electronic Monitoring in Scotland’ The Scottish Journal of Criminal Justice Studies 20: 14-38.
Introduction from Alan Staff, Chief Executive APEX Scotland and chair of the event on the consultation on strengthening the presumption against the use of short sentences held on 4th december 2015
One of the most fascinating things about working in the field of justice in Scotland has been the level of unanimity across all sectors around the desire to bring imprisonment rates down from the shameful levels which we have seen emerge as a consequence of an adherence to a model of justice which places punishment and retribution at its core. Some of you will have seen the statement made by the former Bishop of Edinburgh, Richard Holloway recently saying that we need to move away from the principles of responding to crime with what has been perceived as the just rewards of sin. I have been encouraged by the willingness of the decision makers in Scotland to reconsider the nature of crime and punishment and to acknowledge that a society is defined by the way in which it seeks to control its norms and rules. An insecure society is frequently characterised by draconian penalties against those who threaten its fabric, but a mature society can and should examine itself and ask whether our response to those who break our laws should be one of retaliation or restoration?
These concepts are at the heart of the subject we are considering today and lie at the centre of the proposals put forward by the Scottish Government. To quote the Cabinet Secretary for Justice “Short sentences do nothing to stop reoffending in our communities and only result in offenders going in and out of prison time and time again and reoffending upon release. In my view we need to act on the evidence, be braver in our approach and take bold action needed to tackle these ineffective sentences” strong stuff indeed, but just how brave do we need to be? Is the incremental trial of increasing community options gradually and little by little pushing the presumption period up so that with any luck no one will notice and start complaining to the daily Mail the pragmatic solution, or do we need a more radical approach, one where to quote Professor Anthony Duff “imprisonment plays only a modest role in a decent, humane and efficient system of criminal justice”.
One of the things I love about working in the Third Sector is the range of backgrounds and experiences that its leaders bring to the table, and for those of you who do not know mine is with the NHS and Social care. One of the things I was asked to do was help review and modernise the mental health approach in England and Wales and if you will bear with me I would like to share a number of things we learned in that exercise because I feel they are pertinent to this issue.
The first thing we found was that at large expensive institutions worked with far fewer people but commanded a far greater proportion of the power than services which worked with many people but cost far less. It seemed that the more money a project was given, the greater its ability to attract still more funds. There are lots of reasons for this phenomenon, but the most obvious one is that having made the investment it is a far harder thing to admit you might have been wrong and stop it than it is just to keep feeding the beast. The justice agenda in Scotland is dominated by the institutional bodies and by far the greatest percentage of what is spent goes on a prison system which for years we have been saying should be run down. Surely we cannot still be using imprisonment just because it is too difficult to close some can we?
The second trend we came across was a curiously counter-intuitive principle which was that waiting lists create waiting lists into infinity. Failing to tackle health issues at an early stage and specifically when people were willing or able to do something about it inevitably leads to escalation and increasing levels of urgency and associated costs and complexity. I beg to suggest that this fundamental principal applies to the justice system too. We throw significant funding at those already in the system because the level of crime they exhibit seems to justify a significant response. Specifically we tend to wait until someone has reached a level of offending, either through frequency or severity, that we are required to take action. This is quite literally the grist which grinds the mill. If we fail to take positive action when people begin to offend then it becomes inevitable that we will require the levels of higher tariff interventions. If we start to put more resources and thought into early stage interventions maybe we will begin to starve the institutions as we did in mental health. I hope we will have some examples later on in the day of what such interventions might look like.
I am delighted that after many years of advocating diversion from prosecution for early stage offenders Apex has been asked to pilot its programme in Clacks and Stirling aimed at keeping first timers out of the justice system and promoting desistance and positive behaviour. But this is a small pilot, one of numerous attempts to reduce the flow of people going into the justice system which if there is not a radical and meaningful commitment to moving resources from high end to low end interventions will go the way of so many ‘nice if you can afford it’ schemes. Don’t get me wrong, I believe that if we are not prepared to commit to a significant development of new community based alternatives, not just to sentencing but preventive and diversionary approaches, then whatever we want to do with sentence periods is all a bit academic.
My final observation from mental health development is that we cannot address bits of a system which is supposedly there to engage with people who in reality are on a journey and who at various stages of that journey will require different elements of that system. What we developed was the patient pathway – an analysis of the routes by which people came into the system, what was most appropriate for them at that time and what were the routes through and out of it. This is not radical – we have seen it excellently initiated in GIRFEC and the whole systems approach and we have often suggested that these would be good principles to adopt for those in the justice system. If prison is of value then it is as part of a continuum of support, intervention and rehabilitation or recovery, just as a hospital is only sustainable if there are appropriate and effective primary care services in the community.
To address the length of sentences, however laudable, is not something which I personally believe can be done in isolation because the issue is not what can we do to discourage inefficient use of the prison facility, it is what are we going to put in place which is better?
Alan Staff, 4th December 2015
TURN OFF THE TAP – A Bold Strategy for Women and Justice in Scotland
SWGWO along with the SCCCJ held a one day workshop on 1 April to discuss next steps following your courageous decision not to proceed with plans for HMP Inverclyde. We are writing to bring your attention to a number of key themes that emerged during this meeting.
There was some frustration that the debate following the decision has become overly focused on imprisonment and the custodial estate. We accept that thought needs to be given to how we care for the small number of women in Scotland who need to be in prison for reasons of public safety. However, we would like to see efforts redoubled to ‘turn off the tap’: to stop women who offend becoming caught up in the criminal justice system wherever possible.
This strategy builds on your current work on women and justice but also reflects on the many eminent reports from the past 15 years on how to support vulnerable women in the criminal justice system in Scotland. This strategy is not just an evidence-based approach, it is an ethical framework based on human rights, equalities and social justice.
In this letter we outline our approach to “turn off the tap” to the female custodial estate and propose a strategy for justice reinvestment away from the custodial estate towards our communities.
At the event on 1 April, the Chair, Professor Andrew Coyle CMG, said:
“The starting point for radical reform will not be found within the prison system, no matter how enlightened that may be. Consider the opening paragraph of the report of the Commission on Women Offenders, the Angiolini Report:
Many women in the criminal justice system are frequent re-offenders with complex needs that relate to their social circumstances, previous histories of abuse and mental health and addiction problems.
Let us stand this statement on its head:
Many women with complex needs that relate to their social circumstances, previous histories of abuse and mental health and addiction problems end up in the criminal justice system and are frequent re-offenders.”
He went on to say:
“The question which faces us today is whether the criminal justice system is best equipped to deal with all these complex needs relating to “social circumstances”, previous history of abuse and mental health and addiction problems”. The conclusion of the Commission on Women Offenders was quite clear. The solution to these problems lies beyond the criminal justice system in general and beyond the prison system in particular. The report of the Commission dealt first with alternatives to prosecution, then with alternatives to remand in custody and with sentencing issues before saying anything about imprisonment. Imprisonment, in other words, comes only at the end of a very long spectrum when all other alternatives have been exhausted.”
Our strategy below follows a similar pathway from (i) prevention, (ii) diversion & alternatives to prosecution and (iii) sentencing issues. The outcome being that we turn off the tap supplying vulnerable women into the custodial estate. Prison should be reserved for serious offenders who pose a risk to public safety.
To quote Baroness Vivien Stern:
“When we take women who are sick, abused, addicted, and poverty-stricken and instead of giving them help we give them punishment that is not justice. That is cruelty and we need to stop it”
In order to ensure that imprisonment is only used as a last resort for those women who have committed the most serious crimes, it is essential that steps are taken to immediately reduce the capacity of the women’s prison estate. This would signal the Scottish Government’s clear intent to adopt a bold strategy in relation to women caught up in the criminal justice system.
We believe the current proposals focusing on the female custodial estate are not bold enough. There is another paradigm – limit supply to the custodial estate and reinvest in our communities – turn off the tap.
We believe that the achievable full women’s prison estate should comprise in total three 50 bed units in the west, east and north. The number of women in prison needs to be reduced sharply over the next five years in order to make this a reality. This requires a restriction in the availability of prison for remand or sentence. We believe that this should be achieved by removing the opportunity to remand when there is no real prospect of a custodial sentence being imposed and by restricting the use of prison for offences which are not likely to result in sentences of less than a years imprisonment.
There is a need to discuss in detail the services and practices that should be adopted by the women’s prison(s), and in respect of throughcare and resettlement, but the most urgent issue is to reduce the number of women who are sent to prison. The money saved by closing Cornton Vale and adopting more measures for prevention and diversion can be reinvested to achieve radical reform, as outlined in the blueprints below.
Turn off the tap: Policy and practice blueprint
Women in the criminal justice system are known to be vulnerable and, most often, have themselves been victimised. Therefore:
- Women should always be treated with respect and humanity, no matter what circumstances bring them into contact with the criminal justice system
- The focus should remain upon the individual, and not solely her behaviour or offence
There are three key points at which action can be taken to prevent women from entering prison. The Scottish Government should use its legislative, policy-making and funding powers to ensure action is taken at each point.
- Poverty underlies much criminal offending and homelessness often results from imprisonment. The Scottish Government should invest in welfare reform to lift women and children out of poverty. We suggest that the new income tax-raising powers that will take effect on 1 April 2016 could be used to mitigate the impact of welfare reform measures introduced by the UK Government.
- No woman should ever lose her tenancy due to being remanded into custody, and no woman should ever be released from prison without a secure home to go to.
- There should be a major investment in training in trauma informed practice. This should be made compulsory for all sectors working with vulnerable women.
- Women who live chaotic lives often fail to access services because they cannot travel to appointments, or cannot manage strictly timed appointments. Health, social work and voluntary services must become more accessible by offering flexible working practices and outreach. The Scottish Government should provide extra funding to services that adapt in this way.
- Services for women should be mapped, and funding should be made available to ensure that there are suitable services available throughout the country.
- Scotland currently has the lowest age of criminal responsibility in Europe at only eight years of age. https://www.crin.org/en/home/ages/europe .SCCCJ strongly supports this being changed to at least 12, in line with UN recommendations (UN Committee on the Rights of the Child (CRC), CRC General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10 Paragraph 32) and would like the Scottish government to consider raising it to 15 in line with the Nordic countries such as Norway, Sweden, Finland.
- Diversion and alternatives to prosecution
- Services, such as community justice centres, that support women in need, should be funded to provide a 24 hour on-call service to the police, so that the police are supported to find alternative solutions for women at risk of arrest or detention. Triage diversion should be available in every custody suite.
- If the police judge that arrest is inevitable, there must be immediate arrangements made for the care of any dependent children, and the woman should be involved in those arrangements, as far as practicable.
- Police Scotland should highlight in their report to the Procurator Fiscal whether a person is suitable for diversion, taking into consideration the victim and community, thus helping Procurators Fiscal to quickly identify suitable cases for diversion.
- Prosecutors should always consider diversion from prosecution, and should play a key role in achieving the Scottish Government’s target to reduce the number of women in prison.
- Prosecutors should always have up to date information on the availability of services for women in their area, to whom they can make referrals as an alternative to prosecution.
- Prosecutors should be able to access services at any time, and the Scottish Government should provide funding to enable appropriate services to respond to a request from COPFS to provide support to a woman who would otherwise be prosecuted.
- We request that the Scottish Government considers an increase in the presumption against sentence to 6 months or be even bolder and go up to 12 months.
- Legislation should be enacted to ensure that if there is no likelihood of a custodial sentence being handed down, the court cannot remand the accused to custody.
- Prosecutors should not object to an application for bail if there are suitable alternatives available such as supervised bail or electronic monitoring.
- Every court should maintain a current map of local services so that the full range of available sentencing options can be considered in each case.
- Community Justice Centres, or other appropriate services, should be funded to provide a liaison service to the courts to avoid any situation where a woman is sentenced to custody in the belief that such a sentence would be beneficial, or would secure services not otherwise available.
- The Scottish Government should support the judiciary and the legal profession to understand the availability of, and make use of, the full range of sentencing options such as supervised bail, suspended sentences, and electronic monitoring (EM).
- Services should be funded to support women for whom electronic monitoring is deemed appropriate, so that EM is not a stand-alone sentence.
Turn off the tap: Justice reinvestment blueprint
Close HMP & YOI Cornton Vale.
Although we do not currently have the figures for the running costs of HMP & YOI Cornton Vale, the report of the Scottish Prison’s Commission “Scotland’s Choice” made the following statement on cost savings in the Scottish prison system:
We want our prisons to hold dangerous and serious offenders safely and securely, and to support their ability to lead law abiding lives when they are released. Only about one-third of prisoners manage to avoid reconviction for two years after being released. Does this level of success justify the level of investment or are there other options where we would be more wise to invest? If the average number of people held in prison were reduced by even 500, this would represent a notional annual saving to the taxpayer of £15 million to £20 million. Conversely, increasing the prison system by 700 places will cost an additional £21.7 million to £28 million annually to operate. The notional savings resulting from reducing the prison population by 700 would for example, be enough to fund a national roll-out of an internationally recognised initiative to wipe out illiteracy across Scotland.(Source: Alec Spencer (2008),‘The Unnecessary Cost of Imprisonment,’lecture, The Future of Prisons in Scotland Conference)
Reduce homelessness related to remand and unnecessary imprisonment. The cost to national government of each case of homelessness is estimated to be £26,000 per year. For local authorities to evict, rehouse and re-let (excluding legal costs) it is estimated to be £23, 856 per tenancy. If 10 instances of homelessness could be prevented each year, the saving for national government and local authorities would be £260,000 and £238, 560 respectively.
The economic and social cost per drug user in Scotland is estimated to be £50,000 per year. If 10 women can be helped out of drug addiction, the economy would benefit by £607,030 each year. The average cost of one DTTO order (including drug courts) is £9,6053
It costs an average of £5,328 per week, or £277,056 per year, for each place in secure accommodation. Preventing 2 girls going into secure accommodation would save £554,112 per year.
The current unit cost of diversion from prosecution in Scotland is £332 (CJSW costs). The average prosecution costs for summary and justice of the peace courts are £342 with the average court costs of £115 and average legal assistance costs of £315 on top of that making a total unit cost of £772 source: Table 2 estimates of the cost of criminal procedure and Table 3 estimate of the unit costs of community services / disposals in file 00474266_crimjustice costs 2015.xls
Support women to remain in the community and to take up employment. The average wage in Scotland is £27, 045. This salary would attract tax of £3,400, and National Insurance of £2,285. If 10 women at risk of imprisonment can be supported into paid employment instead, they would contribute £34,000 in tax and £22,850 in National Insurance, in addition to their positive contribution to the Scottish economy in general. This positive contribution would be in addition to the cost savings outlined above.
 Scottish Devolution and Social Policy: Evidence from the First Decade” (2012), edited by Murray Leith, Tim Laxton, Iain McPhee who cite Casey et al, Scottish Government Social Research (2009) that “…the cost of £60,703 per problematic drug user.http://www.gov.scot/Resource/Doc/224480/0060586.pdf