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.

Scottish Sentencing Council Sentencing of Young People Consultation

As the Scottish Sentencing Council acknowledged in its Sentencing of Young People Consultation Paper, the sentencing of a young person is a complex and challenging exercise. It requires a different approach to the sentencing of an older person, where the reasons for this could perhaps be more widely understood. The draft guideline which accompanied it therefore aimed to increase public knowledge and confidence by explaining the process of sentencing a young person. It set out why a more individualistic approach was necessary and highlighted the need to take into account factors common to many young people who commit offences, including adverse childhood experiences such as trauma or bereavement. It explained why rehabilitation is a primary consideration when sentencing a young person, due to a young person’s greater capacity for change and reflected the fact that their level of maturity may reduce their culpability for the offence. This also recognised the disproportionate effect some sentences may have on younger people compared with older people, for example in terms of their employment prospects.

We were in complete agreement that a principle-based approach to the guideline, rather than an offence-specific one, was the correct approach. We agreed that whilst this approach is simpler, more importantly, it allowed account to be taken of the unique circumstances surrounding a young person’s offending behaviour, which can include the presence of trauma; lack of maturity; and the greater capacity for change - categories of factors which remain broadly the same regardless of the offence. A principle-based approach also underlined the overall sentencing principle that sentences imposed must be fair and proportionate.

Focusing on the individual, rather than their offence, we hoped that this may allow for a more tailored sentencing response, in turn, promoting less likelihood of reoffending.

In the hope that this approach to sentencing young people would become accepted and embedded in practice, our expectation was that the emphasis on rehabilitation and an understanding of broader circumstances should also apply to adults, acknowledging the harm that imprisonment causes all, regardless of age. We have seen the beginnings of individualised sentencing of adult offenders through the risk assessment process associated with the sentencing of serious and violent offenders, where orders for lifelong restriction or extended sentences might be imposed. We therefore encouraged the Scottish Sentencing Council to give consideration to whether the extension of similarly principled and evidence-based guidelines on the sentencing of adult offenders could be progressed.

HLS Sentencing of Young People Consultation Response 

Scottish Sentencing Council Sentencing Young People Draft Guideline

Incorporating the UN Convention on the Rights of the Child into our Domestic Law in Scotland

Closed 28 August 2019

We responded to this consultation in conjunction with the Centre for Youth and Criminal Justice (CYCJ), supporting their view that a proactive approach was required over and above technical legal compliance alone. This would place responsibility upon all public authorities and ensure the protection of all children’s rights for all children, acknowledging the importance of embedding children’s rights across all aspects of Scottish life. We agreed that a rights-based approach would require building the capacity of duty-bearers to fulfil their obligations and of rights-holders to claim their rights. We stressed the particular need to support the most marginalised and excluded children to understand and exercise their rights, drawing attention to the fact that this includes children who have a parent in the criminal justice system.

HLS response.

Scottish Sentencing Council - Draft Sentencing Process Guideline Consultation

Consultation closed - 6 September 2019

We submitted a broadly supportive response to the Scottish Sentencing Council's Sentencing Process Guideline consultation, believing that public support for the criminal justice system is important for its legitimacy and that public education plays a key part in this. We noted that the guideline was generally an explanation of current practice that thus should be seen as primarily a tool for external understanding. The guideline's explanation and approach to double-counting; aggravating and mitigating circumstances; multiple offending; and sentencing discounting were thought to be largely appropriate. We asserted that explanations of sentencing decisions were a vital component in a clear and open process and therefore examples should be included where possible. We concluded that the guideline had the potential to lead to an increase in public understanding of how sentencing decisions were made, but should be considered as a first step only.

Scottish Sentencing Council Consultation - The Sentencing Process

Whole Life Custody (Scotland) Bill

Consultation closed - 30 August 2019

This was a proposal introduced by Scottish Conservative Member for North East Scotland, Liam Kerr MSP, for a Bill to give Scottish courts the power to sentence someone to custody for the rest of their life. We argued that the Scottish criminal justice system already has the power to ensure that those people who are convicted of serious offences and who continue to pose a risk to public safety remain in custody for the rest of their lives. We stressed that it was important not to misrepresent current legislation, where life-long license conditions means that the risk of being returned to custody for a breach of conditions remains in place until death, and to be clear about the vital part that the Parole Board for Scotland plays taking decisions to release prisoners. Our consultation response highlighted that Scotland already sentences a high and increasing number of people to life in prison at a time when crime rates are falling; and pointed out that Scotland has the highest proportion of life sentenced prisoners in Europe. We drew upon evidence of the importance of hope in helping those in custody to comply with the prison regime and our obligations under the European Convention on Human Rights, citing Vinter v. UK as the dominant law in this area. With no calls for increased sentencing powers from any members of the Scottish judiciary, we advised that introducing Whole Life Custody Sentences would have no deterrent effect and would negatively affect levels of confidence in the Scottish justice system. We made it clear that Scotland's welfarist and social justice principles were under threat from this Bill, and that its regressive and populist approach was far from helpful to Scottish society.

Proposed Whole Life Custody (Scotland) Bill Consultation

Transforming Parole in Scotland Consultation

HLS Transforming Parole Consultation Response

Submitted on 27 March 2019

1. Howard League Scotland (HLS) thinks victims and their families should have a greater voice in the parole process. We begin by noting that the ‘victim’ ‘offender’ divide is simplistic, given that most people involved in the justice system, whether identified as victims or as offenders, have experienced the damaging impacts of crime. We therefore support a parole process which allows everyone affected by harms committed to be able to move forward. Parole processes which leave victims feeling marginalised will not achieve this, and we therefore support measures which enable their greater inclusion, and a respect for their experiences.

Although HLS does not believe that victims should attend hearings or tribunals (see below), we also know from discussions with those who support victims in Scotland that victims are often disillusioned with, and marginalised from, parole processes, and we strongly support more focus on measures which can be introduced to improve their experiences, which do not compromise the consideration the Parole Board makes on individual cases. HLS is not proposing a definitive list of suggestions which would enable this, we merely highlight a number of possible ways victims can be involved, both prior to and following parole hearings and tribunals, which could contribute to these aims. These include:

  • all victims should have the opportunity to provide oral, not only written, testimony prior to the consideration of the case to members of the Parole Board not directly involved in the case. This currently exists only in life sentence cases. This will enable those with low levels of literacy to be able to participate and all victims to feel their views are heard.
  • all victims should be given the option of being informed of the Parole Board’s decision after the case has been considered (in person if they wish). This should include the reason the Parole Board has reached their decisions. Early indications from England and Wales[1], where victims can also ask for this information, do not suggest that sensitive information is shared more widely with the media etc. thereafter.
  • in cases where the victim(s) of the person's past crime have a reasonable fear of being re-victimised if the person is released on parole (in cases in which offences took place in the context of existing relationships, for example, in cases of domestic abuse), victims’ experiences and perceptions of the likelihood of their revictimization, should be considered in the same way that other risk factors are considered alongside other relevant information. In these cases, the victim’s experience should be gathered prior to consideration of the case, and presented to the Parole Board for consideration in their dossiers along with other information relating to future risk.
  • in general, the issues surrounding victims’ roles in parole processes exist because, in the public consciousness, prison is established as the ‘solution’ to crimes committed. Prison is the ultimate segregator, and while it may support a (temporary) feeling of safety and sense of justice for the victim, it also heightens anxiety when the prison sentence comes to an end. We argue that more work in the community which seeks to rebuild relationships between everyone involved in the crime would be a more enlightened response to crime. Longer-term progress towards reparation and re-integration following crimes committed (which victims’ involvement in parole processes is also seeking to achieve), would be to use prison less, and to rely to a much greater extent on community-based interventions which are better able to rehabilitate and support reconciliation when appropriate.

2. Howard League Scotland (HLS) does not think victims and their families should be entitled to attend parole hearings in person. We believe that the Parole Board should maintain its sole focus on making decisions on release and recall based on questions of potential future risk, not questions relating to punishment, or how the victim may feel about release. The Parole Board must maintain its focus only on whether it is ‘no longer necessary for the protection of the public from serious harm that the prisoner should be confined.’ In this consideration, the victim should have no input, with the exception of cases where the victims of the person's past crime have a reasonable fear of being re-victimised if the person is released on parole (e.g. cases of domestic abuse), as discussed above, though in these cases, involvement should not mean they can attend the meeting at which the case is discussed. There is little data on the effect of victims’ involvement in parole processes from the UK, but data from the USA suggests that greater victims’ involvement does result in greater risk-aversion in parole processes (see for eg. Morgan and Smith, 2005[2]; Parsonage et al., 1994[3]; Smith et al., 1997[4]). We also suggest that victims’ involvement could result in more inconsistent, and therefore unfair, judgements being made (Roberts, 2009). Furthermore, the offences which result in long term sentences, and thus relate to parole, are homicide, rape, sexual assault and serious assault. These offences naturally and understandably engender enduring social and emotional costs to victims, but it is also true that, particularly for homicide and sex offending, the vast majority of those convicted for such offences pose a low risk of recidivism (e.g. Bench et al., 2013[5]; Harris and Hanson, 2004[6]; Roberts et al., 2007[7]). On balance, we remain concerned that any move towards victims’ direct participation in parole hearings and tribunals would allow victim information to override concerns for the individual seeking parole and may result in increased punitiveness towards them when they may present a low risk of recidivism (Caplan, 2010[8];  Roberts, 2009[9]).

3. Howard League Scotland (HLS) thinks there should be clear criteria on the kinds of information the Parole Board should consider in relation to the safety and welfare of victims and their families The factors already considered by the Parole Board are focused on preventing future offending. In cases in which there is a reasonable fear on the part of past victims that they may be revictimized (e.g. in cases of domestic abuse,) the victim would be consulted prior to the Parole Board and these considerations would be considered along with other risk factors at the hearing or tribunal. If an individual poses significant repeated risk to past victims, this would be considered in the overall considerations of risk already. If past victims are revictimized, there are already provisions whereby they will be responded to appropriately. We therefore believe the Parole Board should only consider information that bears directly on the likelihood of reoffending against the same victims.

4. Howard League Scotland (HLS) does not think more could be done to strengthen the Parole Board’s current use of licence conditions (including conditions to exclude individuals from certain areas, or from certain individuals). We believe that the processes around the regulation and review of compliance with license conditions should be changed to provide supervising officers more discretion in deciding whether to refer cases back to the Parole Board, and that the Parole Board should explore ways of avoiding sending people back to prison for breaches, where reasonable alternatives might be considered. However, we do not believe that license conditions should be ‘strengthened’ if this means further exclusion from certain areas or, indeed, the additional and unnecessary use of restrictive measures, beyond those already available. Given the already very high number of recalls into custody following a breach of licence conditions, HLS believes that if anything, more should be done to limit the intrusiveness of licence conditions. The system currently seems to set many individuals up to fail. In order to prove that an individual can desist from crime, they must be given the opportunity to demonstrate that they can. We believe that increasingly restrictive conditions amplify risk, threaten public protection and destabilise desistance (see for e.g. Weaver, 2014[10]; Weaver and Barry, 2014[11]), and there is greater scope for supporting individuals to reintegrate back into their own community after release. There are already mechanisms in place for responding to situations if victims are revictimized through the commission of further offences: in this scenario the individual will be subject to recall. Furthermore, there is a range of civil orders that, in the case of sex offenders for example, allow for the exclusion of individuals from certain areas, from certain individuals and indeed groups of people, defined by demographics – as the need arises based on assessed risk. In light of this, there should be further consultation between the Parole Board and Criminal Justice Social Work when license conditions are established. Criminal Justice Social Workers will have an informed perspective on the viability, or not, of license conditions in the community, their capacity to manage the risk posed by a given individual, and their role in strengthening, or weakening, desistance from crime. The discretion of the supervising officers, in deciding at what point a case should be referred back to the Parole Board for further consideration, should be increased, and it must remain the sole responsibility of Criminal Justice Social Work to regulate and supervise the compliance of license conditions in the community.

We believe that reintegration after prison should not necessarily mean exclusion from previous sites of offending, but that support should be given to communities, and victims, as well to the individuals leaving prison, to enable reintegration. Further exclusion is not the answer and there is evidence to suggest that increasing use of restrictions can increase risk and undermine compliance with licences (Weaver and Barry, 2014[12]).

5. Howard League Scotland (HLS) thinks that victims and their families should receive information on the reasons for the Parole Board’s decisions in their case. The provision of information on the reasons for Parole Board decisions could increase victim satisfaction with the process, prevent a feeling of exclusion and enhance perceptions of procedural justice and attributions of legitimacy. As stated above, early evidence from England and Wales suggests this information has not been shared more widely by the victims. Importantly, information can be provided to them without compromising the primary focus of the Parole Board’s decision, which relates to future risk and reintegration. However, care should be taken to balance the individuals’ right to privacy with the victims’ right to know the details of the case (for example, discussions the individual in custody has had with psychologists, etc. may be highly personal).  The decision on the detail provided in each case may depend on the wishes of the individual whose case is under consideration.  This is not to suggest that the individual concerned should have the power to veto the provision of any such information: but the individual should at least have the right to enter reasoned objections, which the Parole Board must then consider; and there might be some highly personal kinds of information over the release of which the individual should be allowed a veto. Any disclosure, despite dissent, should be defensible and proportionate (e.g. to risk posed) with due consideration to the individual’s right to privacy (article 8).

6. Howard League Scotland (HLS) believes that others should be routinely entitled to attend parole hearings. We believe that in order to secure public consent, the criminal justice system must be open and transparent, whilst being mindful of the risks that this can sometimes cause. However, we believe that this should be restricted to the provision of information to people directly involved in the case (victims, as outlined above), and other relevant directly involved parties, (prisoners’ families for example). We believe it would be unwise to open hearings to members of the public or the media: parole processes are not courts of law. Parole Board hearings are occasions which discuss sensitive and personal information. Attending the hearings can be enormously stressful for the individuals whose cases are under consideration, and, while we agree that it may be appropriate to increase victims’ involvement, as outlined above, we do not agree they should attend hearings, for the reasons outlined above. As discussed above in relation to license conditions, we also believe that Criminal Justice Social Workers should play a stronger role in the parole process: given their experience of managing and overseeing those subject to license conditions, supporting reintegration and managing risk, a Criminal Justice Social Worker with knowledge of, and preferably responsibility for supervision of, the individual should normally attend every hearing, and be required to do so. We also believe that individuals should have access to legal representation at hearings so that their rights can be protected in what are judicial decisions about detention and liberty.

7. Howard League Scotland (HLS) does not believe that information should be routinely shared with others. However, carefully managed sharing of information (with victims primarily) should be more regular, as outlined above.

8. Howard League Scotland (HLS) does not feel that some information regarding parole decisions should be published proactively. There is much more that can be done around opening up the workings of the Parole Board to promote transparency and increase public support, but this should not be a proactive and routine publication of individual cases. See Q9 for more comments on this, below.

9. Howard League Scotland (HLS) does not think that the work of the Parole Board is sufficiently visible. The Parole Board is a vital, yet largely invisible part of the justice system. In many ways, the decision to release an individual, or recall them back to custody, is as important as the decision to sentence in the first place. Public awareness and support for the criminal justice system is crucial to maintain its legitimacy. However, there is little awareness of what the Parole Board does or how it works. The Parole Board could launch a mini public awareness campaign with (anonymised) case studies explaining how it makes its decisions, and more discussion around the issues which are taken into consideration. This could be part of their existing website which already contains information on how the Parole Board operates. Downloadable materials could be provided to schools, colleges and universities, and for journalists. The public education role of the Sentencing Councils in both England and Wales and Scotland, provide good models for the kind of public awareness-raising work suggested here. There is also very little academic research on the Parole Board in Scotland. This could be commissioned, or links could be made with the researcher community which would support this.

10. Howard League Scotland (HLS) agrees that consideration should be given to widening the information available to the Parole Board by establishing a function to investigate and collate information from other bodies. Consideration of issues which could result in further detention should be taken with recourse to the widest available evidence. Recent evidence from the Royal College of Psychiatrists to the Justice Committee, for example, also argued that a psychiatric perspective should more routinely be represented at the Parole Board– see http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11859&i=107285.

11. Howard League Scotland (HLS) does not think that prisoners currently receive the information they need to enable them to participate in the parole process. We draw attention to the most recent annual HMIPS report (2018[13]) which highlighted the frequent confusion and anxiety for those at the end of long and life sentences in relation to their progression to the Open Estate and on into the community. This related to the information available to them about these processes, and also to the acknowledged short-fall of programmes and services available to them during their sentence. The completion of relevant programmes is often an essential component of the decision on whether to release or not. We therefore support greater focus and resources on ensuring that all people in custody are given the opportunity to demonstrate their eligibility for consideration by the Parole Board by way of completion of the programmes which will support their application. Furthermore, given the importance of the Parole Board process, access to legal representation should be prioritised in the same ways as it is in sentencing decisions in court. Parole Board processes will decide on liberty or further detention – they are judicial decisions, and it is therefore imperative that people whose cases are considered by the Parole Board (particularly the decisions around release) have legal representation.

12. Howard League Scotland (HLS) thinks that more could be done to make sure that prisoners understand their licence conditions and the consequences of breaching them. Research (Weaver and Barry 2014) found that individuals at the point of parole require far greater clarity around the meaning, purpose and implications of the conditions to which they are being asked to agree, and these should be provided in plain English.  Good practice would actually encourage their participation - or at least consultation – in the process of deciding on conditions of release. Evidence suggests this is likely to enhance legitimacy, perceptions of procedural justice, and encourage compliance and cooperation. It is wholly unsatisfactory that individuals are handed licence conditions in a letter without also a discussion on what they mean and how the individual feels about this. While there are some roles within the SPS which seek to do this, these discussions should be routine and should also involve their Criminal Justice Social Worker and any other relevant community agencies. The very high rates of breaches considered by the Parole Board suggests that much more needs to be done to support people’s understanding of, and compliance with, license conditions. We also argue that license conditions must be realistic and amenable to monitoring (hence the need for greater involvement of Criminal Justice Social Work in the process)

13. Howard League Scotland (HLS) believes there is a requirement for an additional review process (at least initially) and supports any mechanisms which can support individuals in the early periods following release. Regular reviews (or meetings including the Supervising Officer) could support this. These would allow the individual to voice any concerns they have over conditions and their ability to comply before a negative situation escalates. However, care must be taken that this would not result in pre-emptive recall. As it stands, many parolees/licencees can be reluctant to voice concerns or to share their feelings and experiences due to fear, anxiety and distrust. This is particularly acute for those on post-release licences: cf those on Community Payback Orders (CPOs) for example, who fear re-imprisonment as the default response to any disclosure of difficulties, rather than the provision of support. This is in most cases a reaction to a risk averse culture which effectively discourages open communication and which engenders mutual distrust and anxiety (Weaver et al forthcoming).

14. Howard League Scotland (HLS) does not consider that, in relation to revocation of licence and recall to custody, social workers should be able to refer directly to the Parole Board. Existing measures suffice as they stand. Recall by the Parole Board requires them to meet and this takes time. There are instances when immediate recall, via Scottish Ministers, allows for a person to be immediately arrested and detained in cases where the risk they pose is so great that it is untenable that they remain in the community. We would therefore oppose this mechanism being removed for the reasons stated.

15. Howard League Scotland (HLS) agrees that a transfer to the Scottish Tribunals would enhance the independence of the Parole Board and supports a move to the Parole Board becoming a Scottish Tribunal. In addition to the issues relating to accountability and transparency (addressed below), we also believe that, as a judicial body, it would benefit from the same organisational alignment with the other branches of the Scottish Tribunals. This could have a range of benefits including training and support, as well as staff mobility between Tribunals.

16. Howard League Scotland (HLS) considers that a review and appeal process should be available for the Parole Board. There are significant governance issues with the Parole Board as it currently stands. There is no appeal against the decisions of the Parole Board other than judicial review, and the decision to refer a case to judicial review lies solely with the Chair and Deputy Chair of the Parole Board. We are not aware that their decision making is open to any scrutiny and thus lacks required independence and transparency. In general, given that the decisions of the Parole Board relate to issues as serious as liberty and detention, their decisions must be subject to applications for review and appeal.

[1] Nick Hardwick, at Howard League Scotland Annual Lecture, 6th December 2018

[2] Morgan, K., and Smith, B.L., (2005) Victims, Punishment and Parole: The Effect of Victim Participation on Parole Hearings. Criminology and Public Policy 4(2): 333-360

[3] Parsonage, W., F. Bernat & J. Helfgott (1994). “Victim impact Testimony and Pennsylvania’s Parole Decision Making Process: A Pilot Study.” Criminal Justice Policy Review 6: 87-206.

[4] Smith, B.L., Watkins, E., and Morgan, K., (1997) The Effect of Victim Participation on Parole Decisions: Results from a Southeastern State. Criminal Justice Policy Review 8(1): 57-74.

[5] 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

[6] Harris AJR and Hanson RK (2004) Sex Offender Recidivism: A Simple Question, User Report no. 2004-03. Ottawa, ON: Public Safety and Emergency Preparedness.

[7] Roberts, R.A., Zgoba, K.M., and Shahidullah, S.M (2007) Recidivism Among Four Types of Homicide Offenders: an Exploratory Analysis of 336 Homicide Offenders in New Jersey. Aggression and Violent Behavior 12: 493-507.

[8] Caplan, J.M., (2010) Parole Release Decisions: Impact of Victim Input on a Representative Sample of Inmates. Journal of Criminal Justice 38 (3): 291-300.

[9] Op cit. 7

[10] Weaver, B., (2014) Change or control? Developing dialogues between research and public protection. Probation Journal, 61 (1). pp. 8-2

[11] Weaver, B and Barry, M. (2014) ‘Managing High risk Offenders in the Community: Compliance, Cooperation and Consent in a Culture of Concern’  European Journal of Probation 6 (3) , 278-295

[12] Op. cit. 11

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.

[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.         

 

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

[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'.

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.

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.

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

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.

Presumption against short periods of imprisonment

Redesigning the community justice system (2)

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

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.

Scottish Government’s Draft Budget 2014/15

Submission for the Scottish Parliament's Justice Committee

Date submitted: 11 October 2013

Howard League Scotland's response to Justice Committee's consideration of the Scottish Government's Draft Budget 2014/15

 

 

Purposeful activity in prisons

Scottish Government’s Draft Budget 2015/16

Submission to the Scottish Parliament's Justice Committee.

Date submitted: 31 October 2014

Howard League Scotland response for Justice Committee's consideration of the Scottish Government's Draft Budget 2015/16.

Brain Injury and the Criminal Justice System

Submission to the Scottish Parliament's Justice Committee.

Date submitted: August 2014

Criminal Justice (Scotland) Bill

Automatic Early Release

Reform of Rehabilitation of Offenders Act 1974

Electronic Monitoring

Commission on Women Offenders

Submission to the Scottish Parliament's Justice Committee.

Dated submitted: 18 June 2014

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

Redesigning the community justice system

Scottish Independence Referendum (Franchise) Bill - Prisoner Voting Rights