News

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...

Response from Howard League Scotland to consultation on proposals to strengthen the presumption against short periods of imprisonment

Howard League Scotland (HLS) welcomes the Scottish Government’s review of the presumption against short periods of imprisonment. We supported the introduction of the presumption and were disappointed that the Scottish Government was unable to set the presumption at sentences of six months or less in line with the recommendation of the 2008 Scottish Prisons Commission.

WHY IT MATTERS
Scotland’s imprisonment rate is one of the highest in Western Europe. As a recent editorial in The Daily Record noted, “That is not a badge of honour.” We rely on imprisonment to do too much with too many. HLS believes that prison should be reserved for those who have committed the most serious offences and who pose the greatest risk to public safety.

Even a short period of weeks spent in prison, whether post-sentence or on remand, is long enough to disrupt employment, medical care, housing and family relationships, but not long enough to tackle the underlying causes of offending behaviour. Those sentenced to prison for periods of six months or less are more likely than not to be reconvicted within a year of release. Short-term prison sentences are a waste of public money – something we can ill afford in these financially austere times.

Another impetus for tackling the over-use of short-term imprisonment stems from the recent enactment of the Prisoners (Control of Release) (Scotland) Act 2015. Provisions contained in the Act will increase the number of long term prisoners held in Scottish prisons and therefore size of the prison population. The Scottish Government estimates that these changes will incur an additional recurring annual cost of £6.82m in 2020/21, rising to £15.77m in 2030/31. (By way of comparison, the annual budget for community justice services in 2014/15 is £32.3m.)

On 26 May 2015, when asked how these additional costs would be met, the Cabinet Secretary for Justice replied,

“…far too much of our resource in the criminal justice system is caught up in dealing with short-term offenders who go into and out of prison constantly. If we want to free up the resource in our prisons to allow them to deal much more effectively with long-term offenders—those who pose the greatest risk to our communities—we need to be much more intelligent about how we use our prison estate.”

EXTENDING THE PRESUMPTION
Currently, the Criminal Justice and Licensing (Scotland) Act 2010 legislates for a presumption against prison sentences of three months or less. It is clear that this measure has had no significant impact on the size of the prison population and there is some evidence to suggest that it may have resulted in uptariffing, with more people receiving prison sentences of three to six months. Howard League Scotland supports increasing the presumption against short prison sentences to prison sentences of 12 months or less. If this change is introduced it should be monitored closely to ascertain whether it has reduced the prison population.

We note that the particular focus of this consultation is a review of the presumption and that any alteration to the time period specified in the legislation can by made by secondary legislation (in the form of a statutory instrument). However, there are other possibilities for future reform that we will refer to briefly towards the end of this document.

WILL THE PRESUMPTION ALONE BE ENOUGH TO REDUCE THE PRISON POPULATION?
Howard League Scotland is of the view that even if the presumption against short-term prison sentences was to be increased upwards to sentences of 12 months or less, this measure alone will not be enough to reduce the size of Scotland’s prison population.

    Resources for custody vs. community

There must now be a significant shift of resources from custody to community-based responses to offending. If we are to expect sentencers to send fewer people to prison for periods of 12 months or less, there must be credible, properly resourced community-based services both for those at risk of offending and those who have already committed an offence. Victims and the wider public too will quite justifiably want to know what interventions are being offered to those who might otherwise receive a short custodial sentence.

Many community-based services are reliant on short-term funding cycles. It is hard to understate the impact that this has not only on the sustainability of those services, but also the impact on staff turnover and morale, and the knock-on effect that this has on the experience of the service users. Short term funding also impedes the ability of these services to demonstrate their effectiveness. Any hesitancy on the behalf of sentencers about referring individuals to these services is hardly surprising when the precarious nature of their funding is often manifest.

Aside from funding for community-based services and interventions for those who have committed offences, in the years ahead we are likely to see budgets for mainstream community services coming under huge financial pressure.

The Scottish Prison Service (SPS) has seen its annual budget (excluding capital expenditure) rise from £330.9m in 2008/09 to £368.9m in 2014/15 (an increase of 12%). The budget for criminal justice social work, on the other hand, has remained frozen over the same period at £86.5m per annum. The annual budget for community justice services is £32.3m in 2014/15 and has decreased in real terms in recent years.

We note that the SPS transferred £1.5m of its unspent budget last year to the Scottish Government for allocation to women’s community justice services. Whilst this is welcome, it represents just 0.004% of the SPS’ annual operational budget. There will need to be a far greater rebalancing of resource to the community if we are see a shift away from our over-reliance on prison in Scotland.

We remain to be convinced that the proposed reforms to community justice contained within the Community Justice (Scotland) Bill will deliver on this aspiration. As currently conceived, the draft legislation provides the proposed new organisation Community Justice Scotland with no significant levers to enable the necessary shift in focus and resources from custody to community.

We must avoid at all costs a situation where courts are discouraged from imposing custodial sentences, but find that the community-based alternatives are unavailable or ineffective. An immediate and significant transfer of resources to community justice must go hand-in-hand with any increase in the presumption against short terms of imprisonment.

    Tackling the over-use of remand

We should always seek to use remand sparingly, not least because our justice system is premised on the principle of presumed innocence. In 2012/13 more people entered Scottish prisons to await a trial or sentencing than to be punished: there were 19,175 remand receptions and 14,668 sentenced receptions. Those held on remand constitute a fifth of Scotland’s prison population and the number of people held on remand has increased by 65% since 2000. Scotland’s remand imprisonment rate is the highest of the three UK jurisdictions.

There is anecdotal evidence to suggest the 140-day rule is being regularly breached and that this may be contributing to the over-use of remand.

There are huge geographic disparities in the use of supervised bail. For example, only eight individuals were placed on supervised bail in Glasgow in 2013/14 compared with 76 people in the city of Edinburgh. According to the Scottish Government, the unit cost of supervised bail is £3,002, whereas the annual cost of imprisonment per prisoner place is £37,059 (although others calculate this to be a substantial underestimate).

    Challenging the iconic status of imprisonment

Prison occupies an iconic status in the eyes of society. Its presence is visible, even if only from the outside, and – along with the police– the prison service represents one of the few public services that are available on a 24/7 basis.

Scottish prisons have undoubtedly become more humane places than they once were but no one should be under any illusion that imprisonment is benign. There are very real hazards in cloaking imprisonment in the language of reform. In a recent article published by Scottish Justice Matters, Professor Cyrus Tata of Strathclyde University noted that, “One of the reasons why we are so attached to imprisonment derives from the enticing belief that a positive programme of institutionalisation can improve the lives of the people sent there.”

Professor Tata suggests that we should establish two principles when considering imprisonment: “The first should clarify that the decision to imprison hinges on the seriousness of offending. The second principle should spell out that no one should be sent to custody for the specific purpose of rehabilitation, unless warranted by the seriousness of offending.”

    Other considerations and future reform

The consultation asks whether the Scottish Government should consider legislative mechanisms to direct the use of remand. HLS is aware of changes to the Bail Act in England and Wales that states that sentencers should not remand someone to custody if there is ‘no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings’. We understand that this measure has had some positive impact on the use of remand in England and Wales and we would therefore encourage the Scottish Government to consider whether this might be an appropriate measure to consider in Scotland.

The fact remains that the legislative basis for the presumption against short periods of imprisonment still permits sentencers substantial discretion over whether they decide to sentence someone to custody. As part of a longer term plan to reduce the use of short term imprisonment, we would like to see consideration being given to other policy initiatives including those that have successfully contributed to a reduction in short term imprisonment in other jurisdictions.

For example, in 2011, Ireland introduced a Community Return Scheme, which provides for those serving more than one year and up to eight years to apply for conditional release under strict supervision terms having served 50% of a sentence. This has been very successful and has led to a significant reduction in the number of prisoners.

In Finland, the law envisages that all sentences up to two years will be commuted to intensive forms of community supervision. This takes the pressure off the sentencing judge and is one reason for their low rate of imprisonment.

At a recent roundtable discussion hosted by the Scottish Consortium of Crime and Criminal Justice, it was noted that there was a lack of data on the types of offences that habitually attract prison sentences of 12 months or less. Others questioned whether the length of a prison sentence was the best proxy for the seriousness of an offence.

We would like to see consideration given to the issues set out above as part of ongoing work to reduce the size of Scotland’s prison population.

Howard League Scotland
December 2015

Briefing on Community Justice (Scotland) Bill

COMMUNITY JUSTICE (SCOTLAND) BILL
STAGE 1 DEBATE: BRIEFING NOTE FOR MSPs

Briefing provided by:

Apex Scotland (www.apexscotland.org.uk)
Circle Scotland (www.circle.scot)
Families Outside (www.familiesoutside.org.uk)
Howard League Scotland (www.howardleague.scot)
Turning Point Scotland (www.turningpointscotland.com)
Venture Trust (www.venturetrust.org.uk)
Up-2-Us (www.u-2-u.org)

“…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; where there is a stronger emphasis on robust community sentences focused on actively addressing the underlying causes of offending behaviour.”

Michael Matheson MSP, Cabinet Secretary for Justice
Apex Scotland Annual Lecture, 1 September 2015

Scotland’s imprisonment rate is the second highest amongst the nations of Western Europe. As a recent editorial in The Daily Record (6 November 2015) noted, “That is not a badge of honour.” We therefore welcome the Cabinet Secretary for Justice’s vision of a modern, progressive justice system in Scotland, in which prison is reserved for the most serious offenders who pose a risk to public safety. More than that, we share his commitment to achieving that vision.

If we are to reduce the use of imprisonment in Scotland, there will need to be a greater shift in emphasis and resources towards early prevention, diversion and community-based responses to offending behaviour. Good intentions are not enough. We must ensure that any proposed structural changes have a realistic chance of achieving this shift. While we welcome the creation of a national body with a specific focus on non-custodial sentencing, we are concerned that it does not have the necessary powers to deliver the fundamental change required.

We are concerned about the ability of provisions contained within the Community Justice (Scotland) Bill, as currently conceived, to deliver on this aspiration. Our concerns – some of which were highlighted in the Justice Committee’s Stage 1 report - are set out below:

Definition of ‘community justice’
We are concerned that the scope of the Bill is restricted to those who have already committed an offence, and that this definition differs from that used in the Scottish Government’s 2014 consultation on a Future Model for Community Justice . It also runs counter to the recommendations of the 2011 Christie Commission, which concluded that “High levels of public resources are devoted annually to alleviating social problems and tackling ‘failure demand’” .

Accountability deficit
It is difficult to see how the Chief Executive of Community Justice Scotland (CJS) can be held accountable for the delivery of national outcomes, when the organisation has no powers or levers to ensure that appropriate services are delivered locally. At a local level, governance arrangements for Community Planning Partnerships (CPPs) are known to be complex and often ineffective in holding partners to account for delivery of agreed outcomes. Who locally can be held to account if agreed community justice outcomes are not met in one area compared to other similar areas?

The Bill does not change the funding arrangements for community justice services in any significant way. The majority of funding will continue to go to local authorities. The continuation of the existing funding arrangements means there are no incentives or levers to shift resources in the long term from custodial to non-custodial services. It also means that it will be difficult to shift resources around the country the meet the individual needs of offenders in different areas as these change over time.

Cluttered landscape
It was intended that the Bill would address the ‘cluttered landscape’ of community justice services identified in the report of the Commission on Women Offenders . Given that the Bill proposes handing responsibility for community justice to 32 community justice partnerships, which will then need to liaise with the 32 community planning partnerships (compared with the existing eight Community Justice Authorities), it is hard to see that the landscape will become any less cluttered. The majority of community justice partners are national bodies, many of which may find it difficult to effectively participate in local planning and resourcing appropriate community justice services across all 32 local authority areas.

In an era of financial austerity, and with all the other competing agendas CPPs have to grapple with, we are concerned that community justice will simply not be a priority.

Engaging the third sector
The third sector is a vital player in the planning and delivery of community-based responses to offending. Currently the Bill makes no reference to how the third sector will be engaged as part of the new arrangements. Nor is it clear that the new arrangements will address concerns about the sustainability of services and interventions delivered by the third sector and the sector’s reliance on short-term funding cycles.

Bureaucratic burden
Whilst we all support appropriate levels of planning, performance management and evaluation, the reporting requirements set out in the Bill are considerable. There is a risk that CPP staff will end up spending their time on paperwork, rather than enabling the delivery of innovative and effective services.

Conclusion
Considered alongside the current consultation reviewing the use of short-term sentences and the establishment of the Scottish Sentencing Council, we have an opportunity in Scotland to make some headway in reducing the size of our prison population. The arrangements for community justice are a vital piece of this jigsaw. We are of the view that the draft Community Justice (Scotland) Bill as it stands will require significant alteration during the remainder of the parliamentary process if it is to make a meaningful contribution to achieving our shared vision of a modern, progressive justice system.

17 November 2015

Submissions to Justice Committee prior to Stage 1 evidence sessions:
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/CJ29._Fa... http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/CJ38._Ho...
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/CJ57._Tu...
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/CJ50._CJ...

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