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HOWARD LEAGUE SCOTLAND RESPONSE TO DRAFT SCOTTISH INDEPENDENCE REFERENDUM BILL (2016)

We welcome this opportunity to comment on the draft Scottish Independence Referendum Bill[1]. Our comments are about the proposal (as set out in Section 3 of the draft Bill) to ban convicted prisoners from taking part in a future referendum on Scottish independence.

Summary of our position

  • This Bill represents the third opportunity for the Scottish Parliament to legislate on the franchise. Amendments to both the Scottish Independence Referendum (Franchise) Act 2013 and the Scottish Elections (Reduction of Voting Age) Act 2015 that would have extended voting rights to some convicted prisoners were rejected by the Scottish Government.
  • Once again, instead of simply reproducing the Westminster blanket ban on convicted prisoners’ voting rights, there is an opportunity for the Scottish Parliament to put down a marker about the value placed on democratic rights and social justice in Scotland.
  • We wish to highlight that almost all other European democracies recognise that voting is too hard-won a fundamental right to be lost automatically on imprisonment.
  • We welcome the Scottish Government’s recognition that too many people are sent to prison in Scotland. We also welcome recent statements by the First Minister and other members of the Cabinet about the importance of human rights and their commitment to international human rights standards and protocols, including the European Convention on Human Rights (ECHR).
  • We therefore ask the Scottish Government why it believes that imprisonment on one particular date should be enough in all cases to prevent citizens from taking part in a vote which will determine the constitutional future of their country. We would welcome a broad debate on whether to follow the model of many other developed democracies, and allow some or all convicted prisoners to vote.

 

Why voting matters

“The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.”

The constitutional court of South Africa[2] in a decision on prisoners’ voting rights (1999)

"The creation of a universal franchise is one of the great political achievements of the past 150 years: we should never take it for granted.  How much care we exercise when we decide to remove voting rights is a token not just of how we value fellow citizens, but of how much we value voting itself."

In many countries, the vote is seen as an inalienable right that cannot be taken away as a punishment.  We think that is a powerful position which better represents the values of a modern democracy than the current position in the UK, which has its roots in the mid-nineteenth century relationship between voting and property ownership, and the forfeiture of property for certain crimes. 

We would like the Scottish Government to give a fuller explanation of its decision to follow the UK blanket ban on voting by convicted prisoners

The European Context

The UK is unusual in Europe in implementing a blanket ban on voting by all convicted prisoners.  On the best available recent research (Briefing Note SN/PC/01764, from the House of Commons Library, February 2015[3]):

  • At least eighteen European nations, including Denmark, Finland, Ireland, Spain, Sweden and Switzerland, have no form of electoral ban for imprisoned offenders. Norway has provision for removing voting rights from certain offenders, but this appears never to have been used.
  • In other countries electoral disqualification depends on the crime committed or the length of the sentence. In France, certain crimes are identified which carry automatic forfeiture of political rights and Germany’s ban extends only to prisoners whose crimes target the integrity of the state or the democratic order, such as political insurgents. 
  • Among the Council of Europe countries, those with which the UK keeps company in not allowing any convicted prisoners the right to vote are Armenia, Bulgaria, Estonia, Georgia, Hungary, Liechtenstein, San Marino and Russia: in at least two of these, consideration is being given to change.

The ban is often defended on the basis that those sentenced to prison have broken their contract with society, in a substantially different way from the many other offenders who are given non-custodial sentences or fines, and that this must mean that all convicted prisoners should lose their vote while they are held in prison.  When so many of our fellow democracies reject that logic, we should stop and consider it again.

Even at Westminster, a cross-party Joint Committee of both Houses recommended in December 2013[4] that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released. Although no proposals have yet been brought forward.

The international position underlines that respecting the rights of victims, as we should, does not require the removal of the vote.  We are not aware of any evidence that it functions as a deterrent. Indeed, we find the idea that prison should automatically carry a penalty of “civic death” at odds with the agendas for rehabilitation and reintegration that have been a welcome part of Scottish political debate in recent years.   We believe effective rehabilitation is central to addressing the needs of victims of crime.

The way we use prisons

As a society, we expect the criminal justice system to punish offenders appropriately and reduce the risk of reoffending. Prisons will always be an essential part of that system.

Decisions about imprisonment are often not clear-cut, however: there is not a straightforward divide between the types of offences that attract imprisonment and those that do not. As we noted in our original submission on the Scottish Independence Referendum (Franchise) Bill, in 2011-12, 28 per cent of shoplifting convictions, 54 per cent of housebreaking convictions, and 61 per cent of convictions for serious assault and attempted murder ended in a custodial sentence (Source: Criminal Proceedings in Scotland 2011-12[5]).  The remaining cases were dealt with using non-custodial measures. Using their discretion, sentencers take many issues into account, including the welfare of the offender him or herself and what particular community sentencing options are available in the local area. 

Scotland's rate of imprisonment is one of the highest in Western Europe and over twice as high as the prison populations of the Nordic countries. The prison population rose by 17% between 2004/05 and 2013/14 (Source: Prison statistics and population projections Scotland: 2013-2014[6]). We applaud the commitment of the Scottish Government to reducing the use of imprisonment and support the view of the Cabinet Secretary for Justice delivering the Apex Scotland Annual Lecture in September 2015[7]:

“I truly believe that there is no good reason why Scotland should have such a high prison population… my vision for penal reform in Scotland is one which I believe reflects the values of a modern and progressive nation, in which prison - and in particular short-term imprisonment - is used less frequently as a disposal”

Inquiries into prisons and offending commissioned by the Scottish Government in recent years tell a consistent story about the over-use of imprisonment in Scotland, in particular for those from the most deprived and vulnerable backgrounds.  This is not a new issue: similar points have been made by earlier inquiries.

From Scotland’s Choice: The Report of the Scottish Prisons Commission (2008)[8] established by the Scottish Government and chaired by the Rt Hon Henry McLeish [our emphasis]:

Our review shows that we are not using prisons mainly to tackle serious crime ….    [the] breakdown of data shows we use prison for a very different purpose. Instead of investing in a system that can secure stronger, safer communities, a series of problematic and largely unnecessary uses of prison are revealed….[including]

  • The short sentences problem - people who are more troubling than dangerous: Eighty-three percent of prison sentences in 2005/06 were for 6 months or less (and 57% of all prison sentences were for 90 days or less)…
  • The warehousing problem - a place to hold the damaged and traumatised: Ninety percent of women in prison have drug and alcohol problems, and 75% have a history of abuse and major health problems. The picture for male offenders and young people is similar….

Research has demonstrated and defence lawyers are well aware that similar cases are sentenced very differently in different courts - and even by different judges in the same courts

We calculate that it would be possible to reduce the prison population by as many as three to four thousand offenders who have not committed serious crimes and do not constitute a danger to the public…

From the Report of the Commission on Women Offenders (2012)[9] established by the Scottish Government and chaired by Dame Elish Angiolini [our emphasis]:

There are women who should be in prison to protect the public and to mark the seriousness of their crimes. Even for these women, opportunities for rehabilitation should be available to reduce the likelihood they will reoffend and help reintegrate them back into the community…. For other women who have been repeatedly convicted of committing lower level offences, their offending is often the result of significant underlying issues, such as drug or alcohol addiction and mental health problems, that could be better addressed in the community….  75 per cent of custodial sentences imposed on women are for periods of six months or less…. … further analysis is required to gather the information which will help to explain the reasoning behind sentencers’ decisions.

Female prisoners have higher lifetime incidences of trauma, including severe and repeated physical and sexual victimisation, than either male prisoners or women in the general population.

The evidence is compelling that being sentenced to imprisonment alone should not be regarded as providing a strong enough justification for removing a person’s right to vote and that the current ban impacts disproportionately on the most deprived and vulnerable.  As in other developed European democracies, if we are to remove the vote at all, we should set a higher bar.

Voting and rehabilitation

We welcomed the 2013 inquiry[10] by the Scottish Parliament’s Justice Committee into purposeful activity in prisons and in particular the former Cabinet Secretary for Justice’s statement to the Committee that:

"...the Scottish Government believes that offenders should be sent to prison as punishment, but that our prisons should also be about the rehabilitation and reintegration of offenders back into society as contributing citizens."

We do not want to suggest that voting by itself will make a large difference but we do believe that participation in democratic decision-making could contribute to the process of rehabilitation and send a strong message to prisoners that they remain part of wider society and have a stake in its future.

Arbitrary effects

Including those on short sentences in the ban on voting will create some unusually acute anomalies in the specific case of a referendum.

  • Prisoners on short sentences are regularly released soon after conviction, due to the time they have already spent on remand.  They suffer little or no impact on their voting rights.  Others, where the courts have been content to grant bail, serve their whole sentence as convicted prisoners. Of two people convicted side by side and given the same sentence in the run-up to September 2014, the one granted bail could lose their only opportunity to vote on the issue of independence, while the other does not.
  • In 2013-14, 9,362 people received a custodial sentence of less than 6 months[11]. On an average day only 419 of these were actually in prison serving their sentence, due to: the rapid turn-over of these prisoners; time already spent on remand; and early release (including on Home Detention Curfew; we understand prisoners on early release would be eligible to vote).   On this pattern, there will be a significant element of arbitrary disenfranchisement among those serving short sentences during the year surrounding the referendum.

Practical issues

Arrangements have to be made for prisoners on remand by electoral administrators and the Scottish Prison Service.  Remand prisoners already make up around one-fifth of the prison population and can vote by post.  At first sight, there is not an obvious reason why, for example, prisoners on short-term sentences at least could not be treated in the same way. 

At a minimum, the practicalities of extending the vote to those on short-term sentences, which are defined in law as being less than 4 years, should be tested with the organisations involved and it should not simply be assumed that it would be unachievable. 

On an average day in 2013-14, in addition to the 419 serving sentences of less than 6 months, 1715 prisoners were serving sentences from 6 months up to less than two years, and 1077 were serving sentences between two years and less than four years. (Source: Prison statistics and population projections Scotland: 2013-14[12])

There is also a case for seeking to include those nearing the end of a sentence and being prepared for release, although we realise that they may be harder to identify in law and would bring into the debate prisoners who have committed more serious crimes.

The relevance of ECHR

We recognise that ECHR compliance is a more significant matter for Scottish legislation than UK legislation, because of the limitations on legislative competence in section 29(2)(d) of the Scotland Act 1998, and that the Scottish Government has previously stated that it does not believe that the ECHR applies to voting in referendums.  While recognising that it will be important for the government and the Parliament to satisfy themselves on the legal issues, we want to make this as a moral case, not a legal one.

Conclusion

We hope that the Scottish Government will reconsider its proposed ban on voting by convicted prisoners in a future independence referendum.

We take encouragement from the words of the First Minister[13], at an event on 23 September 2015, in response to a question from Howard League Scotland about prisoner voting rights:

"As we get more responsibility for the franchise more generally of course we will have to consider the issue of prisoner voting. We haven't got any proposals to put forward at this stage but that is something that we will continue to consider.

"Clearly it's incumbent on all governments not just to talk the language of human rights, but not just on this issue but on all issues to make sure that that's reflected in our decision-making as well."

There is an opportunity with this Bill for Scotland to strike a distinctive course which brings us closer to the practice in other developed European democracies, rather than automatically following the model set by Westminster. We believe the question of voting rights for prisoners in a referendum is more, rather than less, acute than in general elections.

We hope that, as part of any consideration of this legislation, this issue would be fully debated, in a way which reflects positively on Scotland as a country which values democratic rights and social justice.

Howard League Scotland

January 2017

 

[1] http://www.gov.scot/Resource/0050/00507743.pdf

[2] https://www.thefreelibrary.com/South+African+Constitutional+Court+rules+on+inmates%27+right+to+vote-a0126392066

[3]  http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN01764#fullreport

[4] http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/103.pdf

[5] http://www.gov.scot/Publications/2012/11/5336

[6] http://www.gov.scot/Resource/0049/00491398.pdf

[7] https://www.apexscotland.org.uk/wp-content/uploads/2015/09/apex_annual_lecture_2015_LoRes.pdf

[8] http://www.gov.scot/Resource/Doc/230180/0062359.pdf

[9] http://www.gov.scot/resource/0039/00391828.pdf

[10] http://www.parliament.scot/S4_JusticeCommittee/Reports/jur-13-05w.pdf

[11] http://www.gov.scot/Resource/0050/00501678.pdf

[12] http://www.gov.scot/Resource/0049/00491398.pdf

[13] http://www.eveningtimes.co.uk/news/13778468.Nicola_Sturgeon__Holyrood_will_not_support_Human_Rights_Act_axe/

Scottish prisons design capacity and average daily populations (2015/16)

HLS response on minimum age of criminal responsibility

HOWARD LEAGUE SCOTLAND RESPONSE TO SCOTTISH GOVERNMENT CONSULTATION ON RAISING THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY

Summary

Howard League Scotland welcomes the proposal to raise the minimum age of criminal responsibility (MACR) from age eight to age 12, bringing it into line with the minimum age of prosecution. However, we would like to see consideration given to raising it further. Raising the MACR does not mean refusing to hold children accountable for their actions, but it does mean ensuring that we avoid the criminalisation of children, and that we pay due attention to their welfare and educational needs.

Why it matters

It is a source of great disappointment to Howard League Scotland that, despite repeated criticism by the United Nations (UN) Committee on the Rights of the Child, children’s charities and advocacy groups, as well as legal and cognitive development experts, until now no administration has moved to raise the minimum age of criminal responsibility in Scotland.

In maintaining such a low minimum age of criminal responsibility, not only are we failing to comply with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child, we are failing to take account of the evidence on cognitive development:

“There is strong evidence that, from a neurological perspective, the human brain is not fully developed in its capacity for cognitive functioning and emotional regulation until well into the period of young adulthood.”[1]

The effect of inaction in this area is the criminalisation and stigmatisation of children as a result of behaviour in early childhood. Carrying a criminal record for offences committed during childhood can restrict life chances by impacting upon a young person’s ability to undertake further or higher education, or to follow their chosen career path.

International context

Scotland’s minimum age of criminal responsibility is eight years old, the lowest in Europe and one of the lowest in the world. By comparison, the MACR is

  • 13 years old in Greece and Poland
  • 14 years old in Bulgaria, Spain, Italy, Germany and Austria
  • 15 years old in Denmark, Norway and Sweden
  • 16 years old in Portugal and Romania and
  • 18 years old in Brazil and Luxembourg, and in Belgium for all but the most serious offences[2].

Minimum age of prosecution

Although the Criminal Justice and Licensing (Scotland) Act 2012 set the minimum age of prosecution at 12 years old, children under the age of 12 are still regarded as having the legal capacity to commit an offence.

If a child agrees they have committed an offence under the Children’s Hearing System, this counts as a conviction under the Rehabilitation of Offenders Act 1974. It is therefore still possible for an individual to carry a criminal record for offences committed between the ages of eight and 12.

Views and evidence on MACR

The UN Committee on the Rights of the Child has stated that setting the MACR at age 12 should be an “absolute minimum” and that state parties should continue to increase it to a higher age level”[3].

A report by the All Parliamentary Group on Women in the Penal System, published in 2012, recommended that the MACR be raised to 14 years old.[4]

A 2010 report by the All Party Parliamentary Group on Children noted that the European experience suggested that a higher MACR tended to be associated with a greater focus on alternatives to prosecution for older teenagers.[5]

In 2011, the Royal Society published a report that look at the legal implications of developments in neuroscience. It stated that neuroscience was

 “providing new insights into brain development, revealing that changes in important neural circuits underpinning behaviour continue until at least 20 years of age”[6]

Other comments

We also agree that there should be a strong presumption against police including non-conviction information on disclosures about conduct that occurred under the age of 12 and that such information should only be included if necessary for public protection and subject to independent ratification.

Conclusion

If we are serious about wanting to make Scotland ‘the best place in the world to grow up in’[7], then we must raise the MACR. We support bringing the MACR in line with the minimum age of prosecution as a first step. However, we would like there to be ongoing debate and discussion about raising both the MACR and minimum age of prosecution further.

References

[1] Prior, D, Farrow, K., Hughes, N, Kelly, G, Manders, G, White, S and Wilkinson, B (2011) Maturity, Young Adults and Criminal Justice: A Literature Review. University of Birmingham: Birmingham.

[4] All Party Parliamentary Group on Women in the Penal System, Keeping girls out of the penal system, March 2012, p.6

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

Statement on presumption against short periods of imprisonment

The presumption against custodial sentences of three months or less has been in place for almost five years and has failed to have any significant impact on the size of Scotland's prison population. Short prison sentences rarely address the causes of crime and disrupt family life, employment and housing arrangements – all factors that reduce the risk of someone reoffending on release.

We welcome the fact that there is considerable support for extending the presumption to prison sentences of 12 months or less, notably from HM Chief Inspector of Prisons, a former Director of Judicial Studies, as well as a number of local authorities and leading voluntary sector organisations that work with those caught up in the criminal justice system.

Changes to early release arrangements made by the Prisoners (Control of Release) Act 2015 mean that some long term prisoners will be spending more time in custody. To fund the costs associated with these changes (which are predicted to produce additional annual costs of £16m by 2030/31), the Justice Secretary has stated that he expects to make savings through reducing the use of short term prison sentences.

Combined with the fact that the Scottish Government is proposing a 11% reduction to the Scottish Prison Service’s overall budget in 2016/17, there is real pressure to tackle Scotland’s over-reliance on imprisonment.

The Scottish Government must act now to shift emphasis and resources from custody to community-based responses to offending behaviour.

Of the responses published on the Scottish Government website, two thirds of respondents supported extending the presumption to prison sentences of 12 months or less: https://consult.scotland.gov.uk/community-justice/short-periods-of-impri...

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