We must 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

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

Full event report here

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