Consultations

Howard League Scotland actively responds to relevant consultations with our views on proposed changes or reforms in the Criminal Justice system. When opportunity presents, we have put forward written and oral evidence to the Justice Committee of the Scottish Parliament.

Transforming Parole in Scotland Consultation

Consultation launched by Scottish Government

Deadline for responses: 27 March 2019

The consultation seeks views on changes to the parole process in Scotland: improving the experience of victims in the parole process, increasing openness and transparency of the Parole Board for Scotland and ensuring that the independence of the Parole Board is maintained. Acknowledging that the parole process requires to balance public safety alongside providing opportunities for rehabilitation, the Scottish Government proposes that i) victims' voices should be strengthened, so that they can more directly inform the Parole Board's considerations ii) improvements be made to the way in which the Parole Board's decisions are communicated and information is provided to prisoners in preparation for parole hearings iii) licence conditions and their monitoring be reviewed to expedite recall should they be breached iv) the Parole Board be transferred to the Scottish Courts and Tribunals Service to bolster its independence, governance and accountability.

Howard League Scotland believes that there must be confidence in all elements of the criminal justice system (including parole) and supports efforts to help prisoners better understand the parole process. We agree that the Parole Board should be moved to within the the Scottish Courts and Tribunals Service to strengthen its independence, governance and accountability, including appropriate access to appeal decisions.

We will be responding in detail to the consultation on this basis, and would urge you to do the same.

Transforming Parole in Scotland Consultation

Prisoner Voting

HLS Prisoner Voting Consultation Response

Submitted on 8 March 2019

Howard League Scotland believes that Scotland should legislate to remove the ban on prisoner voting in its entirety.

There was no parliamentary scrutiny in bringing in the ban on prisoner voting in 1969, and between 1969 and 2000 the ban even extended to prisoners held on remand, who had not been convicted of any offence. It could therefore be argued that there was questionable justification for the ban at its outset.

Extending the vote to prisoners is not simply about criminal justice, penal reform or rehabilitation. It is about human rights: creating a universal franchise for all adults in Scotland and ensuring democratic rights for all citizens. The existence of a universal franchise is an important measure of the strength of our democracy and of social equality. Using that measure, Scotland’s democracy currently falls short.

Imprisonment is the deprivation of liberty alone, and thus nothing which is not inevitable as a result of this, should be included in punishment. Indeed, on 6 December 2001, the United Nations International Covenant on Civil and Political Rights, Human Rights Committee, advised that a ban on prisoner voting “amounts to an additional punishment”[1].

This view is not shared by all, but as David Strang (former HM Chief Inspector of Prisons for Scotland) pointed out in his evidence to the Equalities and Human Rights Committee (7 September 2017)[2], that if not having the right to vote is a punishment, it is a very arbitrary one:

“It is an odd punishment, because it punishes only those who want to vote … If you are someone who is not registered and is not interested in voting, it is no punishment for you at all, because it does not change your life. We have the imposition of a secondary punishment, in addition to the deprivation of liberty, but only on those who have an interest in voting.”

Its arbitrary nature is also highlighted by the fact that actual vote loss is dependent on a combination of the date of sentencing diet, how long someone has previously been spent on remand and on the timing of elections, rather than the sentence or offence committed.

As we stated in our Submission to the Referendum (Scotland) Bill Committee[3] (March 2013), we must also remember that decisions about imprisonment are often not clear-cut, and thus there is not a straightforward divide between the types of offences which attract imprisonment and those which do not. Using their discretion, sentencers take many issues into account, including the welfare of the offender him or herself and which particular community sentencing options are available in the local area.

Imprisonment, rather than conviction then becomes the determining factor in whether someone is able to vote or not. We believe very strongly that a custodial sentence by itself sets too low a threshold for the loss of such an important right as the right to vote, whilst the inconsistent application of sentencing supports our argument for a lifting of the ban in its entirety, rather than linking it to the length of sentence or type of crime.

In denying prisoners the vote, an additional punishment is also inflicted, by way of ‘civic death’:

“such people [prisoners] are also wounded in a civic sense, in that they have already been substantively disenfranchised before their formal disenfranchisement by punishment. They come from communities where their life opportunities are severely restricted, where health inequalities are profound and where levels of political participation are already minimal and deeply troubling. They are therefore civically wounded, and then as part of their punishment — or as an accidental consequence of it — we apply civic death in the form of full and formal disenfranchisement during their punishment. To make matters more absurd — in my view — we insist that they resurrect themselves civically at the moment of their release and enter back into society, fully prepared to make a robust and rounded contribution as politically and civically engaged citizens. That is completely paradoxical.” (Professor Fergus McNeill, SCCJR[4])

However long they are sentenced for, prisoners are still citizens and members of society. Howard League Scotland thus supports Professor Fergus McNeill’s stance; the point made by Dr.Cormac Behan (Lecturer in Criminology, University of Sheffield) in his written evidence[5] that “[t]he concept of civic death on which the denial of the right to vote to prisoners is predicated is an antiquated and outdated idea in a modern democracy”; and the European Court of Human Rights (Hirst v the United Kingdom (No.2)) judgement that “there is no room in the Convention for the old idea of “civic death” that lies behind the ban on convicted prisoners’ voting”[6].

Professor Fergus McNeill’s[7] evidence also makes the point that our prisons contain those from the most disadvantaged communities – alluding to the “warehousing problem … [prison as] a place to hold the damaged and traumatised”,[8] which the Rt. Hon. Henry McLeish identified in his 2008 report, Scotland’s Choice: The Report of the Scottish Prisons Commission and which remains true to this day. The ban on prisoner voting thus impacts disproportionately on the most deprived and vulnerable, doing nothing to minimise the social inequality which members of the Scottish Parliament are adamant must be addressed.

Research has shown that reintegration is aided by strong links between prisoners and their local community. Indeed, there is a view in academia that such links could be one of the ‘hooks for change’ which encourages desistance from crime. In the words of a serving prisoner in Ireland, whom Dr.Cormac Behan interviewed as part of his research:

“Voting allows the prisoner to feel part of a wider community, something incarceration takes away … Being in custody takes away a large part of a person’s feeling of self-worth, being allowed to vote gives back some of that lost feeling. This in turn will make better citizens”[9]

Removing the right to vote adds to the dislocation between prisoner and community, increases the ‘othering’ of prisoners, and reinforces social exclusion in such a way as to work against successful rehabilitation. That is not to say that voting will make a significant difference in itself, but that it could contribute positively to rehabilitative efforts, signalling that prisoners are still part of our society and have a stake in its future.

Howard League Scotland believes effective rehabilitation is also central to addressing the needs of victims of crime. We are prone to seeing victims and perpetrators as mutually exclusive, and thus increasing rights for one, is often seen as being at the cost of the other. Respecting the rights of victims, as we should, does not require that prisoners cannot vote, particularly when we are not aware of any evidence that it functions as a deterrent.

In conclusion, by extending voting rights to all prisoners, the Scottish Parliament would clearly signal its commitment to justice and fairness, and Scotland would make a bold statement on the international stage about the inclusive and democratic character of its society.

As the Canadian Supreme Court stated in Richard Sauvé v Attorney General of Canada & others (2002), “Denial of the right to vote … undermines the legitimacy of the government, the effectiveness of government, and the rule of law … It countermands the message that everyone is equally worthy and entitled to respect under the law”[10]

Voting is too hard-won a fundamental human right to be lost automatically on imprisonment.

In terms of the practicalities of prisoner voting, we support the proposal that prisoners would be registered to vote in a home constituency or ward, not at the address of the prison; and note that it is important that prisoners with low levels of literacy are made aware of an opportunity to vote, and that the necessary help to do so is made available to them.

[1] https://www.refworld.org/publisher,HRC,,GBR,3cbbec3d2,0.html – Part 10

[2] http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11067

[3] Joint submission with The Prison Reform Trust, Sacro, Positive Prison? Positive Futures, Professor Fergus McNeill and Emeritus Professor Mike Nellis (http://www.parliament.scot/S4_ReferendumScotlandBillCommittee/Howard_League_and_others.pdf)

[4] Equalities and Human Rights Committee, Prisoner Voting in Scotland Report, 14 May 2018: 26) (https://sp-bpr-en-prod-cdnep.azureedge.net/published/EHRiC/2018/5/14/Prisoner-Voting-in-Scotland/EHRiC-S5-18-3.pdf)

[5] http://www.parliament.scot/S5_Equal_Opps/Inquiries/Response_from_Dr_C_Behan_to_the_Convener_20171010.pdf

[6] http://hudoc.echr.coe.int/eng?i=001-70442

[7] Equalities and Human Rights Committee, Prisoner Voting in Scotland Report, 14 May 2018: 26) (https://sp-bpr-en-prod-cdnep.azureedge.net/published/EHRiC/2018/5/14/Prisoner-Voting-in-Scotland/EHRiC-S5-18-3.pdf)

[8] Scotland’s Choice: The Report of the Scottish Prisons Commission (2008)

[9] As cited by Professor Fergus McNeill in his evidence to the Equalities and Human Rights Commission (http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11067)

[10] Supreme Court of Canada (31 Oct 2002): Richard Sauvé v Attorney General of Canada & others 2002 SCC 68.

Minimum Age of Criminal Responsibility

1. The UN Committee on the Rights of the Child recommends that the age of criminal responsibility is a minimum of 12 years old, which the Bill adheres to. What are your views on the appropriate age of criminal responsibility in Scotland?

This question misrepresents the UN Committee, which in General Comment 10[1], said the following:

“Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.

33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected.”

Therefore, a correct interpretation of the UN Committee position is not that it recommends that 12 should be the minimum age, but rather that the minimum age should never be below 12 - as such, 12 is the bare minimumof acceptability proposed by the Committee.Indeed, the UN Committee makes the case that a MACR of 14 or 16 sits well with the UNCRC. While HLS welcome the introduction of legislation to raise the minimum age in line with the current minimum age for prosecution, we urge the Scottish Parliament to adopt the higher age of at least 16, in the interests of promoting a forward-thinking and fair system of justice for young people in Scotland.

This would also build on the success of the Whole System Approach, which recognises the hugely detrimental and destructive impact contact with the criminal justice system has on children and young people.[2]Those young people who come into contact with the criminal justice system are as troubled as they have been troublesome. How the state responds to them can significantly change the course of their life. Being drawn into the justice system can stigmatise and label young people[3]and therefore socially marginalise them as they find it more difficult to re-enter life with their peers. Moreover, contact with the criminal justice system at an early age can actually reduce the likelihood that a young person will desist, making future criminal transgressions more likely.[4]As such, by increasing the minimum age of criminal responsibility we will increase the health, wealth and happiness of Scotland’s young people and contribute to reducing crime.

This is a serious issue for our justice system that we must get right, particularly as currently Scotland has one of the lowest ages of criminal responsibility in Europe – but we now have the opportunity to transform Scotland into a more progressive and just nation. However, merely raising the age of minimum criminal responsibility to 12 will mean Scotland has not gone far enough to align our justice system with those countries whose aspirations for social justice we otherwise share. Following HLS’s recommendation, and adopting a minimum age of 14-16, would bring Scotland into line with, for example, Norway (15 years), Finland (15 years), Portugal (16 years), and Sweden (15 years).

2. The Bill makes a number of changes relating to the disclosure of offences and provides that any conduct by a child below the age of 12 (should the ACR be increased) that would previously have been recorded as a conviction will no longer be recorded as such. The Bill does however, allow for disclosure of ‘other relevant information’ held by the police about pre-12 behaviour. The Committee would welcome views on whether the Bill strikes the right balance in terms of addressing offending behaviour by young children under 12 and the disclosure of such information.

If the MACR is raised, then there will in fact be no legal responsibility, and thus there can be no such thing as ‘offending behaviour’ by anyone below the minimum age. In logic and in law this question would become redundant. Therefore, HLS advocates that there should be no suggestion that the police can hold or disclose information about ‘behaviour.’

Any recorded information that it was felt necessary to retain about a child or indeed any person should only be recorded and retained with judicial consent and with full transparency to the child and parent. Further, it should only be shared with judicial consent and not disclosed routinely in relation to employment, education etc. during enhanced disclosure provisions. The impact of retained records on children may be more likely to trap a child in offending rather than protect the community.

3. The Bill provides that children under 12 who are subject to a police interview will have the right to have an advocacy worker present during the interview. What will the impact be on your organisation or on the children you work with who might access the advocacy service?

We do not provide direct services and offer no comment, except to urge that legal representation should be available to all children who are to be interviewed by the police so that their rights are equivalent to adults in a similar position.

4. Raising the age of criminal responsibility would necessitate a number of changes in relation to information which can be provided to victims. The Bill seeks to balance the best interests of victims (including child victims) and the best interests of the child responsible for any harm caused. Again, the Committee would welcome views on whether an appropriate balance in this area has been achieved.

The balance to be had should accord with the right to privacy of the child accused of committing an offence. The UN Committee (footnote 1) considers that:

“the right to privacy also means that the records of child offenders should be kept strictly confidential and closed to third parties except for those directly involved in the investigation and adjudication of, and the ruling on, the case.”

The provision of information to victims appears to contravene this right to privacy. The needs of victims can be met through other means. For example, in Ireland restorative justice conferencing is in place where with the voluntary participation of the victim (or their parent if the victim is a very young child) and that of the child or young person, a meeting can offer information and an opportunity for restitution. Research and evaluation consistently demonstrates that restorative justice can provide better experience of justice by both parties.[5]

In conclusion, HLS welcomes the move to raise the minimum age of criminal responsibility. We urge the Scottish Parliament to ensure that the age is set at 16, so that the proposed legislation will advance Scotland towards full compliance with the recommendations of the United Nations Committee, and to take the utmost care not to create powers that will infringe the rights of children and young people or inhibit their future opportunities.

[1]http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf(Accessed 1st July 2018)

[2]McAra, L., & McVie, S. (2005). The Usual Suspects? Street-life, Young People and the Police. Criminal Justice, 5(1), 5-36.

[3]https://www.research.ed.ac.uk/portal/files/8195355/Youth_crime_and_justice_Key_messages_from_the_Edinburgh_Study_of_Youth_Transitions_and_Crime_Criminology_and_Criminal_Justice.pdf

[4]McAra, L., & McVie, S. (2005). The Usual Suspects? Street-life, Young People and the Police. Criminal Justice, 5(1), 5-36.

[5]Quigley, Martinowicz and Gardiner (2015). Building Bridges: An Independent Evaluation of Le Chéile’s Restorative Justice Project.Research Findings. IRISH PROBATION JOURNAL Volume 12, October 2015

Electronic monitoring

Submission to the Scottish Government.

Date submitted: May 2017

Response from Howard League Scotland to the Scottish Government's consultation document 'Electronic Monitoring in Scotland A Consultation on Proposals for Legislation'.

hls_response_on_electronic_monitoring_may_2017.docx

Healthcare in prisons

Submission to the Scottish Parliament's Health and Sport Commitee.

Date submitted: 28 February 2017

Written evidence provided by Howard League Scotland to the Health and Sport Committee's inquiry into healthcare in prisons.

Commission on Women Offenders

Submission to the Scottish Government's Commission on Women Offenders.

Dated submitted: April 2012

Written evidence provided by Howard League Scotland to the Scottish Government's Commission on Women Offenders.

Support for children (impact of imprisonment)

Submission to Mary Fee MSP, Convener of the Cross Party Group for Families Affected By Imprisonment.

Date submitted: 7 May 2015

Written response provided by Howard League Scotland on support for children affected by imprisonment.

hls_response_on_support_for_children_bill_070515.docx

Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014 (2)

Submission to the Scottish Parliament's Justice Committee.

Date submitted: 30 January 2014

Written evidence provided by Howard League Scotland on the Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014.

final_hls_submission_on_parl_order_300114.docx

Draft Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2014

Submission to the Scottish Government.

Date submitted: October 2014

Response from Howard League Scotland to the Scottish Government's consultation on the Draft Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2014.

Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014

Submission to the Scottish Parliament's Justice Committee.

Date submitted: 8 November 2013

Written evidence provided by Howard League Scotland to the Justice Committee on the Scottish Government's Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014.

Community Justice (Scotland) Bill

Submission to the Scottish Parliament's Justice Committee.

Dated submitted: 12 August 2015

Written evidence provided by Howard League Scotland on the Scottish Government's Community Justice (Scotland) Bill.

Minimum age of criminal responsibility

Submission to the Scottish Government.

Date submitted: June 2016

Response from Howard League Scotland to the Scottish Government's consultation on raising the minimum age of criminal responsibility.

hls_macr_response_june_2016.docx

Presumption against short periods of imprisonment

Submission to the Scottish Government.

Dated submitted: December 2015

Response from Howard League Scotland to the Scottish Government's proposals to strengthen the presumption against short periods of imprisonment.

Redesigning the community justice system (2)

Submission to the Scottish Government.

Dated submitted: July 2014

Response from Howard League Scotland to the Scottish Government's revised proposals to redesign the community justice system.

Scottish Elections (Reduction of Voting Age) Bill - Prisoner Voting Rights

Submission to the Scottish Parliament's Devolution (Further Powers) Committee.

Date submitted: 20 April 2015

Written evidence provided by Howard League Scotland on the Scottish Government's Scottish Elections (Reduction of Voting Age) Bill.

Scottish Independence Referendum (Franchise) Bill - Prisoner Voting Rights (2)

Submission to the Scottish Parliament's Referendum Bill Committee.

Date submitted: 12 April 2013

Supplementary written evidence provided by Howard League Scotland on the Scottish Independence Referendum (Franchise) Bill

Prisoners (Control of Release) Bill

Submission to the Scottish Parliament's Justice Committee.

Date submitted: 20 May 2015

Written evidence from Howard League Scotland (pp.32-33) to the Justice Committee on the Scottish Government's amendments to the Prisoners (Control of Release) Bill.

Prisoners (Control of Release) Bill

Submission to the Scottish Parliament's Justice Committee.

Date submitted: 16 February 2015

Written evidence from Howard League Scotland to the Justice Committee on the Scottish Government's proposed revisions to the Prisoners (Control of Release) Bill.