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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...

Howard League Scotland website problems

Please note that we have been experiencing some problems with our website, which was hacked earlier this year. We hope that we are on the way to resolving these issues but if you have any problem with any aspect of our website, please get in touch with Lisa Mackenzie: lisa (at) howardleaguescotland (dot) org (dot) uk

Reform of the Rehabilitation of Offenders Act 1974

The following submission was prepared by Howard League Scotland in response to the Scottish Government's May 2015 consultation paper on reform of the Rehabilitation of Offenders Act 1974.

1. We welcome the opportunity to comment on the Scottish Government’s proposals for reform of the Rehabilitation of Offenders Act 1974 (“the Act”). In our meetings with the former and current Cabinet Secretary for Justice, we have consistently highlighted the need to reform the Act.

2. The Act was reformed in England and Wales and those changes came into force in March 2014, putting those with criminal convictions in Scotland at a disadvantage compared with their English and Welsh counterparts.

3. We welcome the fact that the proposed changes can be implemented without delay by means of secondary legislation. However, as indicated in Chapter 3 of the consultation document (‘Next Steps’), there is a pressing need for wider reform, which may necessitate primary legislation.

THE IMPORTANCE OF REFORM

4. The economic and social costs of reoffending are considerable. Enabling those with convictions to become rehabilitated and reintegrated into society is in everyone’s interests: it improves public safety and reduces reoffending.

5. Howard League Scotland (HLS) agrees that a balance must be struck between allowing those with criminal convictions to turn their lives around and ensuring public protection. However, it is clear that, over the past four decades, the balance has become skewed against allowing those with convictions to become rehabilitated.

6. As the consultation document notes, average custodial sentence lengths have risen quite significantly since the Act was introduced. In particular, more people are being sentenced to custody for periods between six months and four years.

7. Scotland’s prison population has grown from 4,860 in 1980 to 7,732 in 2015. Our imprisonment rate is one of the highest in Western Europe.

8. Over one in three male adults and almost one in ten female adults in Scotland has at least one criminal conviction.

9. Therefore more individuals are coming under the scope of the Act and with sentence length inflation, more offenders can never become rehabilitated in the eyes of the law. This impacts not only on their employment prospects but access to education, housing and financial service products (mortgages, insurance etc.).

THE NEED FOR FURTHER REFORM

10. There are a number of areas that require further consideration. This should happen without delay, given the likelihood of a need for primary legislation:

Rehabilitation periods for determinate sentences
11. Any determinate sentence assumes that there is a point at which someone’s debt to society will have been repaid. And yet, even once the ‘rehabilitation periods’ in the Act have been amended, anyone sentenced to custody for a period of four years or more will have to disclose that conviction for the rest of their life. We have to ask ourselves how being faced with the prospect of a lifetime of potential discrimination in the employment market will impact on an individual’s incentive to desist from committing further crimes.

12. Therefore we would like to see consideration being given to the possibility of a mechanism for reviewing whether those who have served long term sentences should have to disclose those convictions for the rest of their lives.

Tackling employer discrimination
13. In a report by the Chartered Institute of Personnel and Development (CIPD) in 2010 a third of employers admitted to deliberately excluding those with a criminal conviction when recruiting . The report noted that “employer attitudes remain the most significant barrier that may prevent more people from some groups from entering, remaining and progressing within employment.” It also concluded that “ex-offenders are the most disadvantaged of these various groups”.

14. Many employers are unclear about what their responsibilities are with regard to the Act. At present, there is no penalty for discriminating against an individual without good cause on grounds of a previous conviction. Consideration should be given how best to ensure that employers comply with the requirements of the law. Employers should also be able to access support and advice on risk assessment. And where employers do retain a right to ask about past convictions, any exclusions should be based on an offence with direct relevance to the job.

Review of the Exclusions and Exceptions Order
15. There is a need to review the Exclusions and Exceptions Order (that is, the categories of employment and proceedings to which the 1974 Act does not apply as it is considered appropriate that access to spent conviction information continues to be available for the purposes of public protection). The list of professions that are exempted from the scope of the Act has increased considerably since the legislation was introduced, meaning that many types of employment are now effectively closed to those with spent convictions.

Children’s Hearing System
16. The proposed changes to the Act will not impact on offences admitted to in the Children’s Hearing System (CHS). Almost all offences admitted to/proofed in the CHS now count as Alternatives to Prosecution (AtP) except for those for which the police can retain DNA evidence. This means that any such offences committed by children aged between 8 and 12 will remain on their record until they are aged about 40, even although no longer prosecutable in the courts. This is one of the anomalies of not raising the age of criminal responsibility to 12 along with the age of prosecution.

Reducing the size of the prison population
17. As noted above, Scotland has one of the highest imprisonment rates in Western Europe. One way of reducing the numbers of individuals who fall under the scope of this legislation is to reduce the numbers of people being sent to prison in the first place. Greater use should be made of early intervention, diversion from prosecution and community-based disposals. We would also like to see the Scottish Government revisit the presumption against short term sentences, which are known to be ineffective in reducing reoffending.

The ‘Google’ effect
18. As highlighted by Unlock in their response to the 2013 consultation, reform of the Act does not tackle the ‘Google’ effect. The proliferation of online media means that, even if someone with a conviction has become spent, details of their conviction may be available via an internet search. Consideration should be given to measures to mitigate against the retention of online information about past convictions that might unfairly impede an individual’s ability to become fully rehabilitated/secure employment.

Submitted on 12 August 2015

Guest blog: Restructuring Community Justice in Scotland

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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