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.

Response to Scottish Government announcement on women offenders

Howard League Scotland welcomed the Cabinet Secretary for Justice’s decision not to proceed with plans to build HMP Inverclyde. His decision was another step towards meeting the recommendations in the 2012 report of the Commission on Women Offenders which was clear that most women in prison in Scotland today do not need to be there for reasons of public safety and that their needs would be better met in the community.

Since the Cabinet Secretary’s announcement in January, the Government has recognised that more needs to be done to reduce the size of the female prison population in Scotland and we welcome their efforts.

The emphasis must be on preventing women from becoming caught up in the criminal justice system in the first place, diverting them at the point of arrest and prosecution wherever possible, and reducing the use of remand and short term prison sentences. The time is therefore right to revisit the presumption against sentences of three months and under. There must too be sustainable funding for community-based services.

Decommissioning existing custodial capacity should also be an early aim, with lessons to be learned from the success of work with young offenders and the reduction in numbers at Polmont.

At present it is unclear what the timescale for decommissioning existing capacity will be. We would be very concerned if this did not take place before the creation of the proposed new prison places at a new facility on the site of Cornton Vale and places at five regional custodial units (each with 20 places). The evidence suggests that the creation of new prison capacity can be a self-fulfilling prophecy.

If we redouble our efforts and take a ‘whole systems approach’, there is no reason why the success in reducing the number of young people in custody cannot be replicated for women in custody in Scotland.

Prisoners (Control of Release) Bill - Stage 3 briefing



Provided by:

Dr Monica Barry, Principal Research Fellow, University of Strathclyde
Professor Lesley McAra, Chair of Penology, University of Edinburgh
Professor Fergus McNeill, Professor of Criminology and Social Work, University of Glasgow
Professor Cyrus Tata, Professor of Law and Criminal Justice, University of Strathclyde
Apex Scotland
Circle Scotland
Howard League Scotland
Positive Prison? Positive Futures
Scottish Association of Social Workers
Social Work Scotland
Women for Independence, Justice for Women Group

As the Prisoners (Control of Release) (Scotland) Bill approaches Stage 3, there are four issues that we wish to highlight:

1. Inadequate consultation and evidence gathering

Given that these amendments amount to ‘what may be the most radical change in custodial sentencing policy for twenty-two years’ , we are concerned that they were brought forward in draft legislation without any prior evidence-gathering process. Previous legislation in this area has been preceded by a proper process of consultation and evidence gathering. Unfortunately, the Bill - which has changed almost beyond recognition since Stage 1 - seems to us to have been created without careful thought and without being informed by the extensive national and international evidence on custodial and community sentencing policy.

Lack of scrutiny of the major amendments at Stage 2

The Bill as originally drafted sought to end automatic early release for prisoners serving sentences of over 10 years and sex offenders serving sentences of over four years. However, on 3 February 2015, prior to publication of the Justice Committee’s Stage 1 report, the Cabinet Secretary for Justice wrote to the Convener to say that the Scottish Government intended to table amendments at Stage 2 with the effect of extending the scope of the Bill so that the proposals would apply to all long-term prisoners. He also indicated that he would table an amendment to ensure all long-term prisoners were subjected to a period of compulsory supervision in the community. No further explanation or intentions were provided. Given the significant changes to the scope of the Bill, the Justice Committee’s Stage 1 report confirmed that the Committee “will seek sufficient time at Stage 2 to allow it to conduct the thorough scrutiny expected by witnesses and the general public”.

Unfortunately, no further detail (that is, updated policy and financial memoranda) on the proposed amendments was provided by the Scottish Government until 19 May 2015, meaning that witnesses had just one single day in which to consider the revised proposals and respond to the Justice Committee’s call for evidence ahead of Stage 2 of the Bill. Just two expert witnesses were recalled to give evidence, but this took place the day after the Stage 2 proceedings, meaning that their evidence was unable to inform discussions about the Government’s tabled amendments.

The Bill’s proposals are undermined by the evidence and knowledge of practice

The stated policy objectives of the Bill appear to be to improve public safety and reduce reoffending. However, the Scottish Government has not offered any evidence to support the assertion that the current system of early release currently fails to achieve either of those objectives.

On every occasion that this issue has been given careful consideration in the past, it has been concluded that the best way of minimising harm to the public is to ensure that all determinate sentenced prisoners (especially those denied release at the discretionary stage) are subject to a proportionate and proactive period of supervision and support in the community . This is to ensure that by assisting prisoner resettlement, risk of public harm and risk of reoffending are reduced as far as possible.

No evidence has been produced to refute the conclusions from these earlier in-depth inquiries; nor has there been any new evidence since those findings to show that things have changed in the interim.

Impact on the quality of compulsory supervision of long-term prisoners on release

However, there is evidence that Scottish practice (rather than law) needs to improve in pursuit of these objectives. Shortening the period of support and supervision and seeing its main function as merely technical compliance is likely to be counterproductive. For example, even where prisoners develop ‘narratives of transformation’ in prison, they can struggle to fulfil and realise their aspirations post-release, partly because of a lack of support and lack of acceptance in the community . Similarly, ongoing research suggests that ex-prisoners commonly perceive supervision on licence as counterproductive in terms of resettlement where it is felt to be merely a mechanistic monitoring exercise. Unfortunately, the proposals to reduce supervised release to just six months for all long-term prisoners are likely to make it appear even more mechanistic. Furthermore, the impact of the Bill’s proposal to greatly diminish the period of compulsory supervision and support on the practice of social work supervision should not be underestimated. The standards for initial contact and the frequency of contact thereafter are currently set to ensure ample time for a released prisoner to be assessed, enrolled for and to complete any significant programme of work on post-release supervision .

2. Six month supervision period is inadequate and likely to jeopardise public safety

Currently, long-term prisoners can apply for discretionary parole from the halfway point in their sentence. If they are not released on parole, they are released at the two-thirds point of their sentence (e.g. four years into a six year sentence) and remain under compulsory supervision in the community until the end of their sentence. Long-term prisoners are thus currently subject to (in many cases very demanding) conditions on release and can be recalled to custody at any point during this period.

The Bill as originally drafted made no provision for any compulsory supervision period for those who serve the entirety of their sentence in custody. In response to concerns raised by expert witnesses during Stage 1, the Scottish Government then proposed that all long term prisoners who have not received discretionary parole will be automatically released six months prior to the end of their sentence and be subjected to compulsory supervision in the community until the end of their sentence.

A fixed term of six months is arbitrary and not based on empirical evidence

Proponents of the Bill have not offered any empirical basis for this six-month supervision period. At Stage 2 it was suggested that six months was more or less a compromise between those who wanted three months and those who wanted supervision proportionate to the original sentence length. In reality, the suggestion of three months was only put forward when it appeared at Stage 1 that it was intended to have absolutely no period of mandatory support and supervision in the community. In other words it was seen as better than nothing, but not put forward as an improvement to what is currently done.

Reintegration of long-term prisoners, including those considered a high risk, takes time

Rehabilitation and reintegration take time, especially where someone has been incarcerated for many years. Since released prisoners need to be settled into a community (in terms of securing accommodation and benefits in particular) before supervisors can work with them on longer term issues (such as reducing reoffending and finding employment), we are concerned that six months will be an insufficient period in which to provide supervision in the community and make progress towards reintegration, not least when some released prisoners are placed in temporary hostel or bed and breakfast accommodation for periods often up to a year or more .

Proponents of the Bill have failed to explain how moving from a compulsory supervision period that is proportionate to the length of the original sentence to a blanket six-month period for all long-term prisoners, regardless of sentence length, better serves the interests of public safety. The evidence of a wide range of studies of desistance from crime , , highlights how challenging the process of desistance can be for people who have been involved in persistent and/or serious offending. It is commonly characterised by lapses and relapses that need to be carefully managed in order to sustain and secure positive change. This is skilled work that involves considerable investment of time in developing relationships that nurture motivation, build human capacities and develop social capital. Only where people leaving prison have considerable personal and social resources are they likely to manage that transition safely within a short period. Whilst it is true that the highest risk period is immediately after release, this does not mean that this is the only period when support is required.

In its submission to the Justice Committee on 20 May 2015, the Risk Management Authority stated:

“We want to advise of challenges associated with managing the release of long term prisoners within the proposed timescale of 6 months. Such risk management will necessarily focus on immediate resettlement issues, restrictions, monitoring and contingency measures: resettlement efforts that focus on accommodation, associates and activities will predominate as time constraints will preclude more thorough reintegration efforts to address matters such as building pro-social relationships and employment prospects, and the delivery of interventions; the risk profile associated with this group of prisoners would also indicate that restrictive measures will be applied and compliance closely monitored; agreed and well co-ordinated contingency actions will be required to ensure appropriate and timely response to deterioration in circumstances or failure to comply. As such, the risk management will be intensive but its impact may be limited by the brief period available for monitoring individuals’ circumstances and behaviour, and the preclusion of meaningful rehabilitative efforts.

“A period of 12 months statutory supervision would provide more opportunity for engagement in reintegration activities, and a more valuable period of monitoring.”

The proposed reforms reduce supervision and support to those considered the greatest risk

It should also be borne in mind that this six-month period will apply to those long-term prisoners who either have not been granted discretionary parole because they have been regarded as too great a risk to public safety, or have not sought parole and resisted engaging with rehabilitative services in prison. While the Scottish Prison Service has made great strides forward in making imprisonment a more humane and less degrading experience, it should be remembered that by its nature incarceration (no matter how humane the conditions) cannot prepare individuals for life outside in the way achieved by support and supervision in the community.

3. Increased potential for ECHR challenges

If the period of mandatory supervision in the community is to be reduced to just six months, then there is likely to be an increase in demand for programmes in prisons and places within the open estate whereby prisoners can demonstrate their reduced risk in order to improve their chances of securing discretionary parole.

Witnesses giving evidence during Stage 1 of the Bill raised concerns, however, that there is currently insufficient provision of such courses and open estate availability to meet demand. Where such services are not available (or are insufficient to meet the demand), continued detention may become arbitrary and in breach of Article 5 of the European Convention on Human Rights.

Whilst the current case law in this area (Wells v. Secretary of State for Justice (2010) 1 AC 553; James v. United Kingdom (2013) 56 EHRR 12) relates to those serving indeterminate sentences, it is likely that those serving determinate sentences who consider that they are subject to arbitrary detention without preparation for release will seek to make Article 5 challenges.

4. Financial implications of the Bill

The financial implications of the Bill are considerable. The Scottish Government has estimated that the annual additional cost of changing the current system of automatic early release for all long-term prisoners will rise from £4.6m in 2019/20 to £16.7m in 2030/31.

When questioned at Stage 2 on how these increased costs would be met, the Cabinet Secretary for Justice indicated that these costs would be met by savings made by “other changes that are to be introduced in the system, such as a presumption against short sentences, greater use of alternatives to custody, changes in sentencing practice…and alternatives to the traditional custodial estate”.

In an era of financial restriction, we are concerned that the enormous cost implications of these proposals will be based on uncalculated and unreliable assumptions that savings can and will be made elsewhere.

By contrast, the projected annual cost of these proposals in 2030/31 represents just over half of the Scottish Government’s current budget for community justice (£31.8m in 2015/16). Rather than investing that money in prison capacity, we would suggest that it should be spent on improving the quality and effectiveness of post-release supervision and support.


We can only draw the conclusion that this Bill does not achieve its originally stated aims. It will not end automatic early release , it will not reduce reoffending and it will not improve public safety in the longer term; indeed it is likely to jeopardise both public safety and reintegration.

Furthermore, the Bill misses the opportunity to better clarify sentencing and release policy. It may well be possible to combine the virtues of public safety with clarity in sentencing , but unfortunately this Bill appears to achieve neither.

22 June 2015


SPICE briefing on Prisoners (Control of Release) (Scotland) Bill

Justice Committee’s Stage 1 report on Prisoners (Control of Release) (Scotland) Bill

Written submission from Drs Monica Barry and Beth Weaver, University of Strathclyde, Stage 1

Written submission from the Howard League for Penal Reform in Scotland, Stage 1

Written submission from Professor Fergus McNeill, University of Glasgow, Stage 1

Written submission from Positive Prison? Positive Futures, Stage 1

Written submission from Professor Dr Cyrus Tata, University of Strathclyde, Stage 1

Written submission from Dr Monica Barry, University of Strathclyde and Professor Fergus McNeill, University of Glasgow, Stage 2

Written submission from the Howard League Scotland, Stage 2

Written submission from Professor Fergus McNeill, University of Glasgow, Stage 2

Written submission from Positive Prison? Positive Futures, Stage 2

Written submission from Social Work Scotland, Stage 2

Supplementary written submission from Social Work Scotland, Stage 2

Written submission from Professor Cyrus Tata, Strathclyde University, Stage 2

Supplementary written submission from Professor Fergus McNeill, Dr Monica Barry and Professor Cyrus Tata

Women's Penal Policy Campaign Still Needs Champions

A recent article from Professor Mike Nellis addresses the ongoing struggles to achieve female penal policy reform since plans for HMP Inverclyde prison were halted in January. For HLS, this  announcement came after a long campaign against the prison, however, it does not mark the end of the process but rather signals a new beginning for women’s penal policy in Scotland. However, can anything truly radical be achieved when traditional balances of power remain, namely ‘the continuing Scottish Prison Service (SPS) domination of the debate on the future of women offenders’ as well as ‘the power of the sheriffs/judiciary to exempt themselves from democratic debate on policy as and when they choose’

As Prof Nellis writes, on this issue the government need to hear from outside voices, those same voices that rallied against the prison in the first place. Howard League Scotland continue to be a leading voice in this agenda, and by becoming a  member of HLS that you add your voice and the weight of public support to this cause. If we are to make reform a reality then now, more than ever, we must add our voices to the campaign for Scotland’s community based penal system for women.

Read more:

Mike Nellis, After HMP Inverclyde: where power lies in Scotland’s penal reform debateScottish Justice Matters.

Latest Crime and Punishment Statistics Scotland

Scottish Government Justice Analytical Services have released their latest Statisical bulletin. Some of the key figures include a decrease in the fear of crime, a believe that crime is either static or going down; an increase in the prison population and the average sentence length; and an overal decrease in recorded crime.

Police and Crime

Recorded crime is down by 36% since 2006-07

16.9%: The overall risk of being a victim of crime, which fell from 20.4% in 2008-09, and the estimated number of crimes experienced by adults in Scotland fell by 22% over the same period.

52%: The clear up rate for all recorded crimes in 2013-14, up from 51% in 2012-13 and the highest since 1976

Fear of Crime

76%: the number of adults who thought that the crime rate stayed the same or improved in their local area in 2012-13


55%: Number of people convicted in 2013-14 who received a financial penalty.


4%: The rise in the average prison population between 2010-11 and 2011-12, to 8,178. This was driven by increases of 9% in the remand and 3% in the sentenced population.

9,500: Current projections for the Scottish prison population for 2020-21.

9.5: the average length of sentence in months

Social Work

82%: the percentage of the 19,400 social work order between 2012-13 which were community payback orders.


Read the full report here: Monthly Safer Communities and Justice Brief | Justice Analytical Services (JAS) | Scottish Government | March 2015