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:

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.

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.”

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.

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


Briefing provided by:

Apex Scotland (
Circle Scotland (
Families Outside (
Howard League Scotland (
Turning Point Scotland (
Venture Trust (
Up-2-Us (

“…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.

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:

Howard League Scotland website problems

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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.


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.).


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