Penal Policy

2016 HOLYROOD ELECTIONS: REVIEW OF PARTY MANIFESTOS

We have reviewed the manifestos of the five parties currently represented at Holyrood, comparing the various pledges and commitments against five key issues where Howard League Scotland would most like to see action in the next Parliamentary session:

  • Reducing the prison population
  • Reducing the use of remand
  • Better use of community sentences
  • Reducing the female prison population
  • Increasing the minimum age of criminal responsibility

We have focussed on the section of the manifestos that relates specifically to justice issues. However, we recognise that it is important to consider the party manifesto commitments on justice in a wider context. Many of the solutions to the issues above lie outside the criminal justice system and in health, education, housing and employment policy. (Links to the party manifestos can be found at the end of this document.)

USE OF IMPRISONMENT

Howard League Scotland says:

There are still too many people prison in Scotland.

Scotland’s imprisonment rate is one of the highest in western Europe. There are currently 7,937 people in Scottish prisons today. The Scottish Prisons Commission (2008) recommended that the Scottish Government pursue a target of reducing the prison population to an average daily population of 5,000.  The current set of prison population projections suggest that prison population levels in Scotland will remain at an annual average of 7,800 between now and 2022/23.

What do the party manifestos say?

Scottish Conservatives want to

  • end automatic early release for all prisoners
  • abolish parole for the “worst offenders”
  • send anyone in breach of a Community Payback Order to prison for 24 or 48 hours
  • introduce payment-by-results schemes to tackle reoffending

Scottish Greens want to

  • encourage greater use of diversion from prosecution
  • abolish short prison sentences of less than 12 months
  • ensure custodial sentences are only used for those who pose a threat to the public
  • decriminalise the cultivation and possession of cannabis for personal use, and decriminalise the possession of drugs that grow wild in the UK

Scottish Labour want to

  • introduce a presumption against prison sentences of less than six months

Scottish Liberal Democrats want to

  • reduce overall prisoner numbers
  • introduce a new presumption against short prison sentences of less than 12 months
  • work with the Sentencing Council to change prosecution and sentencing guidelines to refer those arrested for possession of drugs for personal use for treatment, education or civil penalties, ending the use of imprisonment

Scottish National Party wants to

  • support new efforts to deliver effective alternatives to custody

USE OF REMAND

Howard League Scotland says:

Too many people are remanded into custody.

The numbers of individuals on remand have increased by 65% since 2000 (from 951 in 2000 to 1565 in 2015). Around a fifth of those in prison in Scotland are there on remand and our remand imprisonment rate is the highest of the three UK jurisdictions. In 2012/13 more people went to prison to await a trial or sentencing than to be punished. In November 2015, Scottish Legal News reported that the 140-day rule (for High Court trials) is being regularly breached.

None of the party manifestos make reference to the issue of remand.

COMMUNITY SENTENCES

Howard League Scotland says:

We want to see better use of community sentences.

A number of studies have have found that community sentences are more effective in reducing reoffending than short-term prison sentences. For instance, someone serving a prison sentence of six months or less is more likely than not to be reconvicted within a year of release. Community sentences allow individuals to address the causes of their offending behavior, maintain family relationships, tenancies and employment – all of which increase the likelihood of desisting from further criminal activity in the future.

What do the party manifestos say?

Scottish Conservatives want to

  • introduce a presumption into Community Payback Order legislation, where the courts would have to justify not imposing a work element
  • introduce “swift and certain” schemes which where those breaching community sentences are sent to prison for 24 or 48 hours

Scottish Greens want to

  • increase the use of non-custodial sentences and educational disposals

Scottish Labour want to

  • see more alternatives to custody and an increase in community-based sentencing

Scottish Liberal Democrats want to

  • support the further transfer of resources from ineffective short prison sentences to robust and effective community justice options
  • make sure Community Justice Scotland is able to oversee the establishment of many more alternative sentences

Scottish National Party wants to

  • see Community Justice Scotland providing leadership and strategic direction in the planning and delivery of community sentences
  • improve community-based alternatives to short-term prison sentences, including restricting liberty through the increased use of electronic monitoring, combined with support in the community
  • support new efforts to deliver effective alternatives to custody (e.g. Fiscal Work Orders)

FEMALE PRISON POPULATION

Howard League Scotland says:

There are too many women in prison in Scotland today.

The female prison population has risen by 120% since 2000. Research carried out 2011 showed that the rise in numbers has not been driven by an increase in criminal activity by women, by women committing more serious crimes or the increased prosecution of women. The Commission on Women Offenders (2012) stated that ‘there is an urgent need for action to reduce the number of women reoffending and going to prison.’ There are just over 400 women in prison in Scotland today.

What do the party manifestos say?

Scottish Conservatives

No specific reference in manifesto.

Scottish Greens

No specific reference in manifesto.

Scottish Labour wants to

  • halve the population of women prisoners and will implement the recommendations of the Angiolini Commission on Women Offenders

Scottish Liberal Democrats want to

  • support the Angiolini reforms on women offenders and apply the same principles to our response to male offending

Scottish National Party wants to

  • enhance access to community sentencing and support and the development of a new model for the female custodial estate, with a smaller national women’s prison and local community-based custody units

MINIMUM AGE OF CRIMINAL RESPONSIBILITY

Howard League Scotland says:

The minimum age of criminal responsibility in Scotland must be increased.

In 2015, the United Nations Human Rights Committee criticised the fact that Scotland has – at aged eight – one of the lowest minimum ages of criminal responsibility in the world. Although a child under the age of 12 cannot be prosecuted for an offence, they can still be referred to a Children’s Hearing and may ultimately carry a criminal record from the age of eight.

What do the party manifestos say?

Scottish Conservatives

No specific reference in manifesto.

Scottish Greens

No specific reference in manifesto.

Scottish Labour

No specific reference in manifesto.

Scottish Liberal Democrats want to

  • raise the age of criminal responsibility to 12

Scottish National Party

No specific reference in manifesto.

Howard League Scotland

29 April 2016

Guest blog: Restructuring Community Justice in Scotland

As the Scottish Parliament's Justice Committee commences its Stage 1 considerations of the Community Justice Bill, Jamie Buchan considers reform of community justice in Scotland.

Under legislation recently introduced by the Scottish Government, community justice in Scotland is to be reorganised for the second time in about a decade, after the previous reorganisation left it with serious structural flaws – but even if these problems are removed, challenges old and new will remain.

Scottish criminal justice has seen some interesting developments recently; most encouraging was the January decision not to build a new women’s prison at Inverclyde and instead to pursue a model of small local centres, as recommended by Howard League Scotland and the Commission on Women Offenders (the Angiolini Report).

Less well-known are the Angiolini Report’s recommendations on community justice. This is an important part of Scotland’s criminal justice system – in 2013-14, over 20,000 offenders received a community sentence. These sentences combine punishment and rehabilitation – they can include unpaid work requirements, probation supervision delivered by criminal justice social work (CJSW), and interventions aimed at the offenders’ ‘criminogenic needs’ (such as mental health, housing or employment). This vital work goes beyond community sentences – these same structures contribute to the reintegration of offenders released from long prison sentences.

Community punishments are cheaper, less disruptive and overall more effective at tackling reoffending than imprisonment, and the Scottish Government has accepted this for some time. Nonetheless, community justice features only rarely in media and public discussions. As Rob C. Mawby and Anne Worrall wrote in Doing Probation Work (2013), community justice doesn’t have the pop-culture prominence that novels, news media, TV and films have imparted to the police, prisons and the courts. Notwithstanding the reality of sentencing, we tend to think of prison bars when we think of punishment – and to think of community punishments as ‘alternatives to imprisonment’ rather than punishments in their own right.

The distinctive structure of the Scottish system was developed almost fifty years ago, following the Kilbrandon report into youth offending. That report, which famously led to the creation of the Children’s Hearings System, also made recommendations about adult social work and criminal justice. Scotland’s probation service was abolished, and its functions were folded into new generic social work departments within local authorities.

The position of CJSW as a local authority social work institution, rather than a national criminal justice institution, has shaped its development in Scotland – but community justice issues don’t stay neatly within the institutional boundaries of social work departments. They involve police, courts, prisons, the NHS, social housing and the many charities that work with offenders. That makes community justice a matter of partnership, and the current system aims to reflect this. It’s structured around eight Community Justice Authorities (CJAs) – regional bodies established in 2006 after hurried compromise between local government, social workers and the Scottish Executive.

CJAs were set up to reduce reoffending in their regions by allocating CJSW funding, promoting partnership and holding social work departments to account for meeting reoffending targets. The members of each CJA are councillors from the constituent local authorities, who vote on area plans which detail how resources will be allocated. In practice, these plans are prepared by CJA employees – the Chief Officer and their small support staff – and rarely come to a vote. CJA Chief Officers also coordinate activity between various partners: local authority CJSW, the Scottish Prison Service, the NHS, the Crown Office, Police Scotland, Victim Support Scotland and various charities.

Despite the efforts of CJA employees, the current model has serious structural flaws. A CJA has no operational control and only limited strategic control, and it can’t hold the NHS or the courts accountable in the same way it can social work departments. My own ongoing research suggests that CJA staff feel a conflict of aims – reporting a failing social work department to the Government would hinder partnership working, so this power has never once been used. With no control over non-CJSW partners, the success of a CJA partnership has often come down to personality, not policy.

Despite being restricted by these structural factors, CJA staff have often played important roles in developing innovative approaches to rehabilitation. Reoffending has fallen and partnership working has improved since CJAs were established. The system has not been a total failure, but by the time of the Angiolini report it was clear it had to change.

The consultation for redesigning the system was unusually long (about two years), which suggests the Scottish Government wished to avoid the rushed decision-making and implementation that produced the CJA system. Initially the consultation presented three options: keeping CJAs but enhancing their power, handing responsibility to local authorities, or setting up a single national Community Justice Service (the latter recommended both by the Angiolini report and by Howard League Scotland).

None of these options was accepted – instead a compromise between local and national was agreed, but not a regional middle way like the CJAs. Instead the Community Justice (Scotland) Bill, recently published and now in its first stage, will replace CJAs with a new two-tier system.

Local Community Planning Partnerships (CPPs) will be responsible for coordinating partnerships and developing local plans for reducing reoffending – as they already are in many areas outside justice. Alongside these a new national body, Community Justice Scotland, which will be responsible for promoting knowledge exchange and public awareness of community justice.

It’s likely to be a turbulent time for CPPs as they assume these new responsibilities. The upcoming Community Empowerment (Scotland) Bill is intended to strengthen CPPs in light of criticisms of their performance; the Scottish Government is also requiring local authorities to integrate health and social care provision structures, and there’s a growing division within the local authority umbrella group COSLA.

Promoting public awareness and developing public interest could be an even greater challenge for Community Justice Scotland. The Inverclyde decision suggests Scotland could forge a path to a more effective and humane criminal justice system, centred on rehabilitation and reintegration. Getting there requires us to challenge the narrow conception of community punishments as ‘alternatives to prison’, and to develop locally engaged structures which can deal in a multifaceted way with the complex problem of rehabilitation.

*****
Jamie Buchan is a third-year PhD student in criminology at the University of Edinburgh. His research focuses on the development and effects of the restructuring of the community justice systems of England and Wales and Scotland, with particular reference to practitioner opinions, experiences and adaptation in Scotland. He writes here in a personal capacity.

Prisoner Voting

That Scotland denied prisoners the right to vote during the independence referendum undermined the fabric of our democracy and the principle of universal suffrage. In this essay Albie Sachs and HLS President Andrew Coyle review the current ban on prisoner voting in Scotland, England and Wales. How can the Scottish Government make real its social justice mantra when it denied such a large population a right to be counted as a member of a democratic Scottish society during the independence referendum?

Read the essay here: The Right to Vote | Scottish Justice Matters | Vol 3 | Number 1 | March 2015

Prisoners (Control of Release) (Scotland) Bill Feb 2015

We note that the Scottish Government intends to increase the scope of the Bill to end automatic early release for all prisoners serving sentences of over four years’ duration. We also note that the Scottish Government intends to bring forward proposals at Stage 2 to ensure that all prisoners serving sentences of over four years’ duration will be subject to a minimum period of compulsory supervision in the community.

HLS refer members of the Justice Committee to the evidence Howard League Scotland submitted on the Scottish Government’s earlier proposals to end automatic early release in May 2014.

It seems highly likely that these revised proposals will impact on a larger proportion of the prison population in Scotland than the original proposals. These proposals are therefore at odds with the Scottish Government’s aspiration to reduce the size of the prison population.

However, in the absence of further detail beyond that contained in the two page letter from the Cabinet Secretary for Justice to the Justice Committee Convener dated 3 February 2015, it is difficult for us to provide further comment on these proposals. Indeed, it is a matter of concern to us that the Justice Committee is being asked to form a view on these proposals as part of its Stage 1 report without sight of a revised policy memorandum, financial memorandum and explanatory notes on the Bill.

Howard League Scotland 16 February 2015

 

Ban on automatic early release

The ban on automatic early release for sex offenders will show that politics, rather than evidence, shapes Scottish penal policy. Internationally, between 4% and 30% those imprisoned for sexual offences are reconvicted of another crime (not necessarily sexual in nature); a reoffending rate that is lower than other serious violent offenders. Unlike most other crimes, however, sex offences marshal vitriolic public responses. Debates and discussions tend to become steered by highly emotional and punitive perspectives, and it would be easy for these views to become entrenched in Scottish penal policy as well. The heat which resonates from public debates should not stop us from leading more reasoned and informed discussions of penal policy. Without reference to the evidence and research we risk developing prison policy which runs counter to possible best practice.  Bench et al, reflecting on their extensive longitudinal study of sex offender reoffending rates, remark on how divorced our conceptions of risk and sex offenders are in comparison to the empirical reality, writing that ‘The current interest in sex offenses has spawned assumptions about the behavior of sex offenders that are contrary to the findings of numerous empirical studies showing that sex offender recidivism is surprisingly low’ (2013:424).

Speaking of the blanket ban on early release for sex offenders in Ireland, O’Donnell et al write that it ‘makes it difficult to incentivize them to participate in treatment programmes. However, we know that periods of parole are typically short, measured in months rather than years, and that sex offenders are unlikely to recidivate soon after release (Friendship and Thornton, 2001). If the assessment of risk is to play a role in the determination of parole then this must redound to the advantage of sex offenders’ (2008: 138).

We know that supervised release back into the community supports desistance; easing the difficult post-prison transition as well as providing mechanisms of continued criminal justice monitoring for the protection for public safety. Moreover, the ‘community management of sex offenders can be done safely in the majority of cases if the right things are done and done well’ (Kemshall 2012).

A sizeable challenge then faces Scottish politicians and policymakers: to run the gauntlet of media misrepresentation and the heat of public ire regarding sex offences (and lest we forget, a reaction which is often rooted in compassion as much as punitvism), and ignite a discussion about the aims of prison and supervision for sex offenders which is evidence-led.

 

Find out more:

Scotland: Recidivism amongst Serious Violent and Sexual Offenders

References:

Bench, L. and Allen, T.D (2013) Assessing Sex Offender Recidivism Using Multiple Measures: A Longitudinal Analysis, in The Prison Journal, 93(4):411-428.

Friendship, C. and D. Thornton (2001) ‘Sexual Reconviction for Sex Offenders Released from Prison in England and Wales: Implications for Evaluating Treatment’, British Journal of Criminology 41(2): 285–92.

Howard League Scotland, Proposal to end automatic early release.

O’Donnell, I., Baumer, E.P. and Hughes, N (2008) Recidivism in the Republic of Ireland, in Criminology and Criminal Justice 8(2):123-146.

Kemshall, K. Presentation made to Members of the Legislative Assembly, Stormont, April24th, 2012, sponsored by NIACRO: Public Protection: What works in the safe management of sexual offenders?.

Scottish Government: Bill to End Automatic Early Release.

Scottish Parliament Information Centre: Prisoners (Control of Release) (Scotland) Bill

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