Phones in Prisons: Reconnect or Rehabilitate?

Yesterday’s headlines carried the good news that prisons in England and Wales will have in-cell phones installed this year. This is an important penal reform that will improve the quality of life for prisoners in England and Wales, but it also casts a critical light on Scottish prison policy and how and why we might now wish to emulate this development.


Scotland – an Outlier

The possibility of in-cell phones was tentatively proposed in Scotland in 2013, but received little public and political backing. It seems that this issue has not been explored any further since then. Until recently Northern Ireland was the only UK jurisdiction to provide people in prison with in-cell landlines. Now, however, as England and Wales move forward with this prison reform Scotland will be left behind, soon to become the only prison system in the UK that does not provide prisoners with landline access inside their cells. The dominant and prevailing argument given in support of providing prisoners greater access to private and affordable phones is that it will increase rehabilitation and therefore reduce crime. This is because there is a great deal of research suggesting that family contact helps reduce recidivism.[1] However, should our prison reform aspirations be limited to rehabilitation and desistance? 


Family Contact

We know that prisons are isolating for prisoners. Prisons have restrictions on when and how often prisoners can receive visitors; and in Scotland, where prisons are often widely dispersed across this vast nation, actual family contact can be more difficult to maintain than it might immediately appear.[2] This makes phone contact all the more important. For the time being, however, in Scotland prisoners’ calls will continue to be made on public phones on public landings – where private conversations, family matters, and any and all news will still be received in full view and within earshot of other people. At the very least, this makes maintaining genuine and meaningful conversation with those outside the prison much more difficult. Insufficient family contact is part of what causes suffering for prisoners beyond the deprivation of liberty, and therefore the justification for more landlines in prison cells runs deeper than reducing crime.

In addition, we should never treat families merely as a tool to be used to support prisoner rehabilitation, particularly given the corrosive impact the prison can have on their lives. While they themselves are not imprisoned, the prison usually comes to dominate their family life. Having a family member in prison can cause anxiety, shame and stigma, deepen social and economic marginality, and having a parent imprisoned can yield particularly devastating consequences (Wakefield and Wildeman 2014). As one of Scotland’s leading experts on imprisonment and its wider impact on families, Dr Cara Jardine, has written, given their ‘potential difficulties and vulnerabilities, these families should be offered support as individuals in their own right and not simply viewed as a potential resource for reducing reoffending’. 


Communication and Well-Being or Rehabilitation?

There is a strong general argument for phones in cells. If the Scottish Government, and our New Cabinet Secretary, Humza Yousaf, decide to reconsider the position on prison phones, then they will need to think seriously about why we do it: how the policy works in practice will depend on whether its main rationale is reducing reoffending or to help improve family contact. If a phones policy is to help maintain as normal as possible family relations, then phones in cells will be able to receive incoming calls as well as make out-going calls. In addition, if the Justice Department and SPS are motivated by reducing the problems caused by imprisonment and not merely rehabilitation, then they will need to address how phones are paid for. If we want to lessen the destructive impact of the prison on family life, mental health, and reintegration, then the Scottish Government and the Prison Service must foot the bill for this increased phone contact.

As Jas, someone who is currently serving a sentence in a Scottish prison, recently wrote, managing a weekly budget in prison is a careful balancing act, challanged by the same demands of low wages and increased cost of living. But what his account also reveals is the already existing stress for prisoners and their friends and families in financially managing continued contact in Scotland. This is exacerbated by the fact that many of the people in prison are from communities that experience the most acute financial deprivation. As Jas writes, ‘I believe that high phone call costs and low prison wages is a double-edged sword that makes the SPS’s literature of ‘encouraging positive relationships’, less achievable’. Therefore, the current cost of phones in prison means people are already limiting their family contact, and thus undermining the health and welfare of the entire family.

Now, add into this existing situation the possibility of increased family contact and what the penal system will also inadvertently create is additional anxiety about not being able to afford to maintain contact: it would cost £1.30 per day for a prisoner calling home every day for just ten minutes to a mobile, multiply this by 7 days and it would cost £9.10 per week (which is more than some prisoners wages). Therefore, if this policy is about maintaining family contact and lessening the harm caused by imprisonment, then HLS advocate that in practice phones will need to be affordable and flexible.


Time to Reconnect Prisoners? 

The Scottish Government, should they now decide to also follow the present progressive trend and install phones in prison cells, should do so because it helps make prisons more humane, softening the sense of isolation a prisoner feels and may make reintegration less difficult. Secondly, the government should also consider this a worthy and vitally important venture because of the wider social impact of improved prisoner contact. The Scottish government already acknowledges that the families of prisoners suffer collaterally in ways that can cause lasting damage. If we wish to limit the unintended injustices of the Scottish criminal justice system, then increasing the opportunities for normal family contact must be made a priority for prison policy in 2018. It is time for Scottish prisons to reconsider the issue of phones in cells, but we should also do so for the right reasons. Rehabilitation is an important aim for prison policy, but we need not narrow the rationale behind progressive reforms to reducing reoffending. Instead, prison policy makes its most progressive and socially just impact when it attempts to transform the prison by reducing the detrimental effects of imprisonment on prisoners and society alike.



[1]Mills A. and Codd, H. (2008) ‘Prisoners’ Families and Offender Management: Mobilizing Social Capital’, Probation journal, 55(1): 9-24. 

[2]In 2015, 61% of Scottish prisoners reported that the cost involved in getting to the prison was prohibitive and 57% stated that the distance of the prison from their home also made arranging visits difficult. Scottish Prisoner Survey 2015:

Raising the bar of youth justice: the minimum age of criminal responsibility

Last Friday the 6th of July, the Equalities and Human Rights Committee closed its consultation on its proposal to raise the minimum age of criminal responsibility (MACR) in Scotland from 8 to 12. HLS welcomes this and recognises it is an important advance, however, this will still leave us lagging behind other more progressive European justice systems. HLS urge the government to not limit our aspirations to merely have the highest MACR within the UK, but to take this opportunity - as crime continues to fall and fewer young people are in the justice system - to firmly establish Scotland as one of the most progressive youth justice systems within Europe.

The Scottish government suggest that 12 is the age of criminal responsibility suggested by the UN Committee on the Rights of the Child. However, this misrepresents the UN Committee’s position, which in General Comment 10[1], said the following:

“Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level. 

33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected.”

Therefore, a correct interpretation of the UN Committee position is not that it recommends that 12 should be the minimum age, but rather that the minimum age should never be below 12 - as such, 12 is the bare minimum of acceptability proposed by the Committee. Indeed, the UN Committee makes the case that a MACR of 14 or 16 sits well with the UNCRC. While HLS welcomes the introduction of legislation to raise the minimum age in line with the current minimum age for prosecution, we urge the Scottish Parliament to adopt the higher age of at least 16, in the interests of promoting a forward-thinking and fair system of justice for young people in Scotland. 

This would also build on the success of the Whole System Approach, which recognises the hugely detrimental and destructive impact contact with the criminal justice system has on children and young people [2]. Those young people who come into contact with the criminal justice system are as troubled as they have been troublesome. How the state responds to them can significantly change the course of their life. Being drawn into the justice system can stigmatise and label young peopleand therefore socially marginalise them as they find it more difficult to re-enter life with their peers. Moreover, contact with the criminal justice system at an early age can actually reduce the likelihood that a young person will desist, making future criminal transgressions more likely [3]. As such, by increasing the minimum age of criminal responsibility we will increase the health, wealth and happiness of Scotland’s young people and contribute to reducing crime.

This is a serious issue for our justice system that we must get right, particularly as Scotland currently has the lowest age of criminal responsibility in Europe – but we now have the opportunity to transform Scotland into a more progressive and just nation. However, merely raising the age of minimum criminal responsibility to 12 will mean Scotland has not gone far enough to align our justice system with those countries whose aspirations for social justice we otherwise share. Following HLS’s recommendation, and adopting a minimum age between 14-16, would bring Scotland into line with, for example, Norway (15 years), Finland (15 years), Portugal (16 years), and Sweden (15 years).

The proposed Bill also suggests a number of changes relating to the disclosure of offences and provides that any conduct by a child below the age of 12 that would previously have been recorded as a conviction will no longer be recorded as such. However, the Bill does will allow for disclosure of ‘other relevant information’ held by the police about pre-12 behaviour. If the MACR is raised, then there will in fact be no legal responsibility under this age and thus there can be no such thing as ‘offending behaviour’ by anyone below the minimum age. In logic and in law this demand should become redundant. Moreover, disclosure hinders people’s prospects, if children are to be protected from the legal barriers of disclosure as they become adults then there can be no loophole which permits young people to forever to labelled as ‘ex-offenders’. Therefore, HLS advocates that there should be no suggestion that the police can hold or disclose information about ‘behaviour.’ 

Any recorded information that it was felt necessary to retain about a child or indeed any person should only be recorded and retained with judicial consent and with full transparency to the child and parent. Further, it should only be shared with judicial consent and not disclosed routinely in relation to employment, education etc. during enhanced disclosure provisions. The impact of retained records on children may be more likely to trap a child in offending rather than protect the community.

Finally, the Government suggests that raising the minimum age of criminal responsibility would necessitate changes in relation to information that can be provided to victims. HLS argue that the balance to be had should accord with the right to privacy of the child accused of committing an offence. The UN Committee (footnote 1) considers that:

“the right to privacy also means that the records of child offenders should be kept strictly confidential and closed to third parties except for those directly involved in the investigation and adjudication of, and the ruling on, the case.”

The provision of information to victims appears to contravene this right to privacy. The needs of victims can be met through other means, however. For example, in Ireland restorative justice conferencing is used with the voluntary participation of the victim (or their parent if the victim is a very young child) and that of the child or young person. These meetings can offer information and an opportunity for restitution and research and evaluation consistently demonstrates that restorative justice can provide a better experience of justice by both parties [4].

In conclusion, HLS welcomes the move to raise the minimum age of criminal responsibility. However, we urge the Scottish Parliament to ensure that the age is set at 16, so that the proposed legislation will advance Scotland towards full compliance with the recommendations of the United Nations Committee, and to take the utmost care not to create powers that will infringe the rights of children and young people or inhibit their future opportunities.    

Read more:
HLS Consultation response MACR     



[1] 1st July 2018)

[2]McAra, L., & McVie, S. (2005). The Usual Suspects? Street-life, Young People and the Police. Criminal Justice, 5(1), 5-36.

 [3] ibid.

[4] Quigley, Martinowicz and Gardiner (2015) Building Bridges: An Independent Evaluationof Le Chéile’s Restorative Justice Project, Research Findings, IRISH PROBATION JOURNAL Volume 12.



Justice Committee Remand Report

Yesterday the Justice Committee published its report on remand. This is an important and timely review. We know that in 2017 18.7% of the daily average prison population was made up of people on remand, and the large majority of those people were not found guilty of any offence, but remanded awaiting trial. In fact, 15% of the Scottish prison population are remanded into custody without conviction. The high rates of remand are one of the causes of Scotland's staggeringly high prison population, and therefore remand contributes to Scotland’s reputation as one of Western Europe’s most punitive nations. In England and Wales the use of remand is dropping (where 11% of the prison population is on remand), but in Scotland the remand population has been steadily increasing for decades. [1] Furthermore, the Scottish courts use of alternatives to remand custody, such as supervised bail, have been falling.[2]

Remand is incredibly damaging, it disrupts people's lives (interrupting or even cancelling work contracts, rent or benefits, for example), can undermine their prospects and impact detrimentally upon their family. In addition, the remand prison regime is most often bereft of the education, work and support services and purposeful activities that other prisoners engage in. Moreover, remand prisoners are given less post-prison support than convicted prisoners.

The key issues the report highlighted include:

  •  Scotland’s courts frequently rely on remand to detain people, yet a high proportion of these people do not go on to receive a custodial sentence. Therefore, even if found guilty, they likely have not committed a crime whereby imprisonment for public protection or punishment is deemed necessary, undermining justifications for remand.
  • 70% of women on remand will not go onto receive a sentence; 71% of accused people remanded in solemn proceedings will go onto receive a prison sentence; but only 42% of those people remanded before trial in summary proceedings will receive a custodial sentence.
  • Instead, it appears remand is being employed as a method to ensure people who are accused turn up for their court appearance. For instance, it seems that a person who is homeless, and thus is already more vulnerable and marginalised, is more likely to receive remand.
  • A period of remand can also cause homelessness. People can lose their tenancy while on remand. While people in custody can register as homeless two months before they leave the prison, this is made more difficult for remand prisoners who have little idea when their release date will be.
  • Currently, there is no consistent database that monitors the reasons prisoners are remanded into custody so frequently in Scotland.
  • Remand is economically, personally and socially costly. It is at least as disruptive as a short term sentence, which Scotland has committed to using as a measure of last resort given that short sentences are recognised to be counterproductive as a deterrent and a desistance intervention. 
  • What are the alternatives to remand? The report suggests electronic monitoring, supervised bail and mentoring as possible routes to divert people out of an unnecessary and destructive period of custody. 
  • Some people feel that remand can be a perverse positive, however. Prison is percieved by some as a place for safety and stability where people can access services not available in the community. 

Remand is a major issue in need of penal reform. In many ways, ending remands and reducing our prison population appears simple, but as the report also reveals, remand is justified not as a punitive tactic but as a coercive social support of last resort. However, the prison should never be used as an alternative to welfare interventions in the community. If this is the case, then solutions that can drastically reduce remand must focus on early intervention, social welfare support and diversion. While the prison may be able to provide some limited forms of support, overuse of the prison is always harmful for social relations, causes stigma for individuals and can severely damage family life. It is the most severe punishment the state can deploy against people who have committed a crime. Therefore, it should never be used (1) as a means to address a gap in welfare and community provision; nor should it be used (2) against citizens who have not been found guilty of a crime.

Read the report here: An Inquiry into the Use of Remand in Scotland


HLS Gives Evidence to Parliament

Are we trying to reduce our imprisonment rates and create a more humane penal system? Will we be able to use the bill to reduce our use of the most severe sanction?’ (Howard League Scotland). 

On Tuesday the 15th of May HLS was invited to Hollyrood to give evidence to the Justice Committee on the current iteration of the Management of Offenders 2018 Bill. This will be a significant piece of legislation that seeks to (1) extend the use of electronic monitoring and open up the possibility of using GPS tracking, (2) reduce the periods of time people with convictions have to disclose these convictions to prospective employers, and (3) amendments to the constitution of the parole board.

As part of a panel of witnesses, HLS raised questions about the underlying aims of the bill: is this bill intended to reduce the use of imprisonment or increase surveillance and security? The panel also pointed to serious concerns for reintegration and inclusion.

Aims of the Bill:

  • How can we use the extension of electronic monitoring (EM) to reduce Scotland’s staggeringly large prison population and not as a risk averse technology that increases surveillance and security in the community?
  • Electronic monitoring should be used to support the goals of rehabilitation and reintegration and not be seen as an end in and of itself. It will work best if it is one tactic in a suite of measures that involve the skills of mentoring and/or criminal justice social work, for example.
  • If EM is targeted at the prison population and used as a means to increase the frequency and length of temporary release from prison it can help reduce the prison population, support reintegration and maintain public safety.
  • However, we need data on the uses of temporary release and how EM influences it.
  • There was resounding support from the witnesses to tackle Scotland’s use of remand. Remand is not addressed in the current bill. Yet we know that 15% of our prison population are there on remand have not been found guilty, and the majority of them will not go on to receive a sentence.



  • Developing EM may be part of penal expansion rather than reduction. Innovation has often caused up-tariffing and net-widening without reducing number of people imprisoned. In Scotland in recent years we have seen massive expansion of community orders in Scotland and no decrease in the use of imprisonment.
  • Excessive or disproportionate use of exclusion zones will denigrate what it means to be a citizen in Scotland. We need to set a specific maximum spatial size or distance—in metres or kilometres— and a maximum number of areas that can become exclusion zones. We have to protect citizenship and the reintegration aims of penal policy. 
  •  Do we want to have a privatised EM system? If Scotland aspires to be closer in practice to the Scandinavian models of criminal justice, we should not continue to follow the UK example of privatised provision of EM. Where it is not outsourced electronic monitoring is better integrated with probation/social work services.
  • The bill still demands lifelong disclosure of criminal records for people who have served 48months or longer. This is stigmatising and exclusionary as people are forever expected to reveal their past convictions, no matter how much time has passed.


Read more:

HLS's Submission to the Justice Committee on the Management of Offenders Bill 2018

Justice Committee Official Report on Evidence Session 15 May 2018


HLS Management of Offenders Submission


Part 1: Electronic Monitoring


  •  Overall, do you support Part 1 of the Bill concerning the electronic monitoring of offenders?

HLS cautiously welcomes the proposed changes to electronic monitoring as a means to (1) directly and assertively reduce Scotland’s troublingly high imprisonment rate and (2) strengthen criminal justice social work and community justice alternatives. We recognize that electronic monitoring has the potential to add an element of control into community supervision that other measures do not have, and this may help to displace a custodial sentence. Hence, people may avoid the disruptive effects of imprisonment, such as loss of housing, employment, social stigma, and erosion of relationships. HLS also welcomes the more strategic integration of monitoring with criminal justice social work, so that tagging is less likely to be a stand alone option but part of a package of support. Our wariness, however, is rooted in our concerns about criminal justice net-widening and up-tariffing. As we recently wrote,[i]a considerable increase in community sentences over the last decade has not impacted the rate at which Scottish courts give prison sentences (instead it has drastically reduced the use of the fine, a much less intrusive punishment). As such, further developing electronic monitoring (EM) may be part of penal expansion rather than reduction. Moreover, the expansion and refinement of EM poses other potential issues for social justice, desistance and citizenship, which HLS remains apprehensive about.

Fundamental questions and aims of the Bill remain to be clarified. What are the precise underlying penal rationales motivating the expansion of electronic monitoring in Scotland? It is essential to make clear whether this is about: strengthening surveillance in the community, improving criminal justice social work, and/or reducing Scotland’s staggering overuse of imprisonment. It is likely that the government is compelled by all three factors, but the balance that is struck between these priorities will make the difference between a positive or punitive change in Scotland’s penal system. Currently, HLS is concerned that a refined and expanded version of EM is being proposed to increase risk management of individuals who have been convicted, first and foremost.[ii]At a time when crime is falling, people in Scotland are less afraid of crime,[iii]and evidence suggests that EM does little to improve or increase perceptions of public safety,[iv]the justification for extra individual control measures is unclear. 

Below we set out more precisely what we see as the most pressing concerns about the current Bill in relation to electronic monitoring.

Electronic monitoring is unlikely to reduce the prison population. Without judicial support and committed political will to seriously reduce the prison population, it is doubtful that the further EM provisions will cause any inherent reduction in the number of people being sent to prison; in fact, this may mark a period of penal expansion. Innovation has often caused up-tariffing and net-widening without reducing number of people imprisoned. In recent years we have seen massive expansion of community orders in Scotland and no decrease in the use of imprisonment.[v]The evidence also asserts that after the initial introduction of a trial of EM in Scotland, only 40% of those who received a tag would in fact have received a custodial sentence, meaning that in the majority of cases EM did not displace a custodial sentence.[vi]There is no evidence to suggest that the proposed arrangements in the Bill will address this practice.

Undermining temporary release.In wanting to make prisoner release schemes more robust, we may in fact make them more punitive. Section 7 expands the use of electronic monitoring for those on temporary release (TR). TR is an act of trust that allows the prisoner being intermittently released to experience the personal autonomy and responsibility denied to them in prison. The intention behind the proposed change is to increase the numbers of prisoners receiving TR who otherwise are considered just on or below the threshold of risk. If implemented as intended, this will allow a greater number of prisoners to have a gradual and controlled transition back into the society.[vii]However, if tagging is not used as an opportunityto give more people release, but instead becomes a punitive and control supplementto current arrangements, it will undermine TR practices by adding a layer of constant surveillance to what should be a period of liberation (that is often already restricted by curfew). How can those future prisoners who would (under current arrangements) have received temporary release without EM be protected from the infringement of their release by the additional imposition of GPS tagging? HLS worries that rather than expand the number of people on TR – and therefore yield a reduction in the daily average prisoner population – that people on release, who would have received leave anyway, will from now on be more likely to be subject to increasingly onerous tagging that they would not have been prior to the bill being enacted. 

There must be a way to monitor and make public the number of people who get TR with and without a tag, and track how that fluctuates in the future, namely: how many additional people are receiving TR? Is the use of EM expanding but the percentage of prisoners being released relatively the same? This information is vital if the veracity and effectiveness of the legislation is to be monitored. Otherwise, the Bill creates another pathway to a more punitive penal system that increasingly limits a person’s experience of temporary release. How can prison and parole officials ensure they are expanding release, allowing a greater number of prisoners temporary leave from the prison, while not limiting the practice of release by making it more restrictive and risk averse in general? 

Increased numbers of breaches and recalls to prison. Creating a more restrictive and tightly monitored period of temporary release and parole could have ramifications for recall to the prison. Those on parole who enter certain areas or are out after curfew may be returned to prison. When the breach is being decided on technically by a company this is more likely. The extension of tagging in the community must not be used to further entrench a punitive logic but to support more inclusionary approach to punishment. Alternatively, when a social worker is responsible they can assess the breach. They are more likely to use their professional discretion to judge the seriousness of the breach in relation to the general character and level of compliance by the supervisee.[viii]If EM is but one tactic in an integrated programme of community supervision and surveillance, however, then the severity of punishment for breaching EM should remain in question. If a person who is tagged is generally succeeding in meeting the broader demands of supervision and desistance, we need to seriously consider if breach of EM curfews and exclusion areas should automatically cause a recall to prison. 

Electronic monitoring has no inherent rehabilitative capacities.There is very little evidence that supports the claims that EM is in itself an effective form of desistance,[ix]andthe addition of EM has not been found to increase completion rates of community orders in Scotland.[x]Allowing EM to be used more strategically by incorporating it with CPOs (and not just after a breach of a CPO) and potentially increasing the demand for skilled assessments from social workers – who can advise the judiciary on the suitability of a tag as well as supervise people being electronically monitored – are beneficial developments. However, this may also mean that those given a community sentence with electronic monitoring are in fact tagged for much longer than they would have been if just given a stand alone RLO. Extending the imposition of monitoring (in tandem with a CPO) from a maximum of 12 months to three years seems excessive and not fully justified by risk levels. The legislation that supports electronic monitoring should always be guided by proportionality.

To achieve desistance, electronic monitoring should rarely be used in isolation.Forms of monitoring that best support reduced reoffending are those that are deployed in tandem with other forms of supervision.[xi]Key to developing and improving EM is that equal attention and financial support are given to expanding community justice options. Changes to EM should not be made without fully costing and planning for these essential supportive forms of community engagement. This should not be restricted to forms of supervision, such as criminal justice social work, vital as these are, but include a portfolio of support services that could be much better financed and expanded, including mentoring programmes, such as Shine, New Routes and Moving On, for example.

Like in Scandinavia, the use of electronic monitoring in Scotland should be used to support social work and social justice goals, such as desistance, reintegration, improving family relationships, addressing addiction and building social capital, such as gaining employment, training and education. Section 3 of the Bill does propose expanding electronic monitoring so that it can be used alongside CPOs. However, this broader ambition is difficult to realise in practice if Scotland continues to emulate the English commercial model of tagging.

The problems of a privatised penal system. If Scotland aspires to be closer in practice to the Scandinavian models of criminal justice, we should not continue to follow the UK example of privatised provision of EM.[xii]Where it is not outsourced electronic monitoring is better integrated with probation/social work services. G4S, and contractors like them, have no social work skills or expertise in providing care and support to people, they are unable to help people in distress. It has already been argued that until tagging is fully integrated into criminal justice social work the potential for the sensible, innovative and helpful use of EM will be limited.[xiii]Instead, we are set to give more money to private enterprises to conduct surveillance, when the publically provided services of criminal justice social work and community based interventions – that offer an interpersonal relationship, provide guidance, supervision, and counselling – are increasingly overshadowed by technological innovations in community punishment.[xiv]

Undermining citizenship, reintegration and rehabilitation through the creation of exclusion zones. While RLOs are already available and provide a sensible way to restrict access to small areas, say the home of someone who has been the victim of domestic violence, HLS is particularly concerned about the proposed creation of large exclusion zones. It has been proposed that these could range "from a house, to specific street patterns, to a neighbourhood, to a whole city. GPS also allows more than one exclusion zone to be set. Using GPS technology to set exclusion zones can help create safe spaces for victims of crime", according to the Scottish government.[xv] We worry that a desire for effective and cheaper forms of criminal justice and community protection are superseding more ethical and social concerns about citizenship and reintegration. When people are denied access to large areas of public space, like city centres, it sends a clear statement that they do not belong here, that they do not deserve equal membership of Scottish society. When we block people from full social and civic association we degrade their citizenship as we make people criminal for moving through public spaces. We also blur the lines between the community and the prison. We strongly resist any suggestion that cities and neighbourhoods should be carved up into permitted territories and no-go zones. This has the long-term potential to create a community justice culture of security and exclusion in Scotland, rather than a culture of reintegration and social inclusion.


  •     The Scottish Government wishes electronic monitoring to play a greater role within the criminal justice system. Will the reforms in Part 1 of the Bill help enable this? If not, what further changes (legislative or non-legislative) are required? 

Yes, it will. However, the matters we raise above make clear that precautions must be taken to ensure that electronic monitoring has a positive rather than punitive impact. What is the underlying role EM is intended to play in Scotland’s future penal landscape? Its expansion will be more successful if it challenges institutional problems: low levels of temporary leave from prison; the disjointed relationship between tagging and CJSW; and the courts troublingly high use of custodial sentences. Alternatively, EM’s expansion could have an exclusionary and punitive impact on community justice if it mainly targets individual problems: increasing surveillance and control of convicted people, resulting in net-widening and up-tariffing; and excluding individuals from large areas of public, commercial and cultural space, such as the city centres. If EM largely targets the institutional limitations of Scotland’s current penal system, however, it will be more likely to challenge the existing punitive patterns in Scotland’s penal system.[xvi]That should be the central priority underlying this policy development.


  • Do you have any views on any specific aspects of Part 1? – for instance, revisions to the list of circumstances in which electronic monitoring may be imposed or the creation of a power to enable future monitoring devices to contain GPS technology or technology that can measure alcohol or drug ingestion.

In wanting to directly address the size of the prison population, EM could be used as a means to immediately reduce the staggering number of people being held on remand. Currently, 15% of the Scottish prison population are being held on remand without conviction.[xvii]This seriously and egregiously undermines the presumption of innocence and is at least as disruptive to people’s lives as a short sentence. EM alone however will not provide a fix for this most concerning penal practice. An expansion of bail supervision arrangements that provide pre-trial stability would need to be given priority, with EM only used as part of a suite of support that keep people out of the prison until they have been convicted and sentenced.

In the policy memorandum it is written that ‘the policy intention is to ensure that the data protection rights of the offender are respected’, this is troublingly vague. With GDPR reframing future organisational behaviour around privacy, what are the precise data protection implications of expanded EM, including GPS? A GPS tag, especially one that also does transdermal alcohol monitoring, would generate a huge quantity of extremely sensitive data about someone – far more than a radio frequency tag and quite possibly transmitted in a less secure way. How do we know G4S has the capacity to store this data in a way that protects a monitored person's rights and complies with the law? G4S already has a litany of serious errors in their recent history; how they manage this data should be treated with the utmost of concern.[xviii]

Part 2: Disclosure of Convictions

  • Overall, do you support Part 2 of the Bill? The Scottish Government’s view is that it will provide a more appropriate balance between the public’s right to protection and a former offender’s right to “move on” with their life, by, overall, reducing the legal need for disclosure. Do you agree?

Following research evidence on crime rates, aging and reoffending, we assert that the Bill does not go far enough to reduce the punitive impact of disclosure for certain groups of people after they have left prison.The proposed changes are a welcome recognition that the Rehabilitation of Offenders Act has unduly long “rehabilitation” periods and the changes will limit disclosure in important ways;[xix]  however, HLS feels the proposed changes are still far too cautious and do not fully remove the barriers to employment discrimination faced by people with a conviction. That some convictions can never become spent, no matter how much time has passed since the conviction, seems counterintuitive to the aims of reintegration and social justice. 

The amendments still allow for disclosure of spentconvictions. HLS is concerned that these amendments only apply to basic disclosure. If a job requires a standard, enhanced or PVG disclosure application, then spent convictions can still be disclosed.[xx]This means that in Scotland a conviction is potentially never spent as, in certain circumstances and depending on the offence, spent convictions remain always available for prospective employers. This undermines the fundamental aims proposed in the Bill: that the discrimination experienced by people with a criminal conviction should be drastically reduced. For many people that simply will not be the case as their record is never really sealed.

This Bill allows the continued demand for lifelong disclosure.Should this Bill pass into legislation, the upper threshold for a conviction that cannot be spent will increase from 30 months to 48 months.[xxi]This means that for those who have served the longest periods of imprisonment will still be subject to stigma, labelling and potential job market exclusion, no matter how they have conducted themselves in the intervening years. If someone is safe enough to be returned to society, if they have served their prison time, why must they be subject to a life long unspent conviction? This also conflicts with the rich body of evidence that shows that reoffending drastically reduces as someone ages.[xxii]Further, it is widely estimated that after a period of 7 to 10 years a person who has not reoffended will have the same offending potential as someone who has never offended.[xxiii]In practice, people who have served over 48 months are already subject to licence conditions once they are released, ostensibly aimed at supporting rehabilitation, reducing reoffending and maintaining public protection. Maintaining life long disclosure seems purely punitive as it brings no added public protection after a certain number of years has passed. Instead it will feed into the hopelessness, frustration and anger that a number of prisoners already feel about their prospects of getting post prison employment.[xxiv]

Moreover, as sentences have gotten considerably longer since 1974, and Scotland has Europe’s largest population of life sentence prisoners, it means that Scotland will likely have one of the largest cohorts of people who will forever have to disclose their past conviction/s. In addition, evidence also tells us that employers tend to be biased against hiring people with convictions;[xxv]therefore this aspect of the legislation continues to expose certain groups to employment discrimination. What is the purpose of keeping a group of people subject to life long disclosure? Answering this question in relation to the existing evidence reveals this particular tenet of the legislation is difficult to justify. 

The government admit that disclosure measures “operate differently (and more stringently)” for long-term prisoners. We suggest that this decision is likely rooted less in evidence-based findings and is instead the product of a more visceral assessment, in which anxieties about long-term prisoners being a more serious public safety threat are allowed to prevail. Following McGuinness et al (2013), HLS suggest that there is not an inherent “balance” or trade off between public safety and hiring people with convictions, as the question suggests. Hiring people with a criminal record does not inherently pose danger to the employer, colleagues or the public. In fact, securing employment is proven to be an important protective factor against re-offending.[xxvi]Therefore, reducing the barriers people with convictions have to overcome in getting work will contribute to increased public safety.

  • Do you agree with the Scottish Government that other reforms in Part 2 will make the law on disclosure of convictions more intelligible, clear and coherent?

Yes. Currently, the system is complex – a point already raised by prisoners[xxvii]and likely shared by the many people in Scotland with convictions. Though, as stated above, there is still a disjuncture between telling people that after a stipulated waiting time that their conviction will be spent, while at the same time also allowing those same convictions to always be accessible for the purposes of standard, enhanced and PVG disclosure applications. This could be confusing, frustrating and ultimately counterproductive.

            Amending the language of the Act is very welcome. Replacing ‘rehabilitation period’ with ‘disclosure period’ will likely provide greater clarity to employers about the meaning of a spent conviction and how it happens i.e. the passive passing of time rather than someone being assessed as “rehabilitated”.  


  • Do you have any further views on law and policy around disclosure of convictions?

Access to education for people who have been imprisoned or have a criminal record needs to be addressed much more explicitly, particularly if the government is to address the education attainment gap.[xxviii]Currently, people who undertake third level degrees while in prison in Scotland who later, upon liberation, wish to continue study with those same universities outside the prison have a “restriction marker” added to their student record. As a result, they are not allowed access to their student record or course homepage unless their probation officer asserts that this is ok. Further, people coming out of prison are often not allowed to sign up for further study unless the form is co-signed by their probation officer. This is an extremely ostracising and stigmatising practice that is at variance with the aims of reintegration and serves no function in supporting public safety or reducing risk. Under no circumstance should universities be permitted, or encouraged, to act as an extension of the justice system. Like employers, universities should not be allowed to retract offers to prospective students if they have a criminal record.[xxix]This kind of open discrimination against people who have been imprisoned and have convictions should be seen as a grievous disregard for equality.


Part 3: Parole Board for Scotland 

  • Do you have any further views on the role, purpose and functions of the Parole Board?

The most serious issue faced by the Parole Board is its growing reluctance to grant parole.When it comes to getting parole, prisoners are facing an increasingly cautious Parole Board. In their 2015-16 report, the Parole Board noted that of the 337 life prisoners recommended to them, only 44 were directed for release. Hence, the problem is not that people get parole too easily, but the exact opposite. In 1994 a life sentence prisoner in Scotland had a 29% chance of being released. In 2003 the chance of parole for a life sentence prisoner had dropped to 17%. The latest reports show that only 12% of life sentence prisoners secured release via parole. This means more people are serving longer sentences in Scottish prisons than ever before.[xxx]HLS does not believe that this reduction in release reflects a substantial increase in misconduct by life sentenced prisoners. Instead, it is likely that the Parole Board had become more risk averse, reflecting changes that have taken places across the criminal justice system.[xxxi]


Howard League Scotland

HLS is Scotland’s leading independent penal reform advocacy organisation. Established in 1979, it campaigns for just responses to the causes and consequences of crime and works to shape a progressive future for Scotland’s penal system.


[i]Howard League Scotland, 28 February 2018, Crime falls, but the prison remains.

[ii]Scottish Government, 23 February 2018, New ways to improve public safety.

[iv]Barry, M., et al (2007) An evaluation of the use of electronic monitoring as a condition of bail in Scotland: Final Report, available at: 

[v]Howard League Scotland, 28 February 2018, Crime falls, but the prison remainsBarry, M. et al (2007). 

[vii]Armstrong, S., et al (2011) Evaluating the Effectiveness of Home Detention Curfew and Open Prison in Scotland, research findings no. 32/2011.

[viii]Nellis, M. (2015) Underusing Electronic Monitoring in Scotland, in Journal of Offender Monitoring 26(2) 10-18; Barry, M. et al (2007). 

[ix]Graham, H. and McIvor, G. (2017) Advancing electronic monitoring in Scotland: Understanding the influences of localism and professional ideologies, in European Journal of Probation, 9(1): pages 62-79. DOI: 10.1177/2066220317697659.  

[x]Lobley and Smith (2000).

[xi]Graham, H. and McIvor, G. (2015)Scottish and International Review of the Uses of Electronic Monitoring Stirling: Scottish Centre for Crime and Justice Research, University of Stirling; Graham, H. and McIvor, G. (2017)

[xii]Nellis, M. (2013) The Scottish Monitoring Consultation – Asking the right questions, in Scottish Justice Matters, 1(2): 31-32.

[xiii]Scottish Association of Social Workers (2014) Evidence to the Scottish Government Consultation on EM,Edinburgh: The Scottish Government; Nellis, M. (2015). 

[xiv]Nellis, M. (2016) The limits of penal reimagining, in Scottish Justice Matters, 4(1): 31-32.

[xvi]Howard League Scotland, 20 March 2018, Scottish Prisons in Comparative Perspective; Howard League Scotland, 12 March 2018Scotland Must Reform Life Sentences; Howard League Scotland, 19 April 2018, Achieving Social Justice in 2018: Prisoner Voting Rights

[xvii]Howard League Scotland (forthcoming) Unlocking Scotland: Remand Prisoners; though a marginal number of untried prisoners are awaiting deportation, see also Scottish Prison Service, SPS Prison Population.  

[xix]McGuinness, P., McNeill, F., and Armstrong, S. (2013) The Use and Impact of The Rehabilitation of Offenders Act (1974): Final Report, SCCJR 02/2013. 

[xx]For a brief and useful description of the differences between these different forms of disclosure application, see Weaver, B. (2018) Time for Redemption? A Review of he Evidence on Disclosure of Criminal Records, Scottish Centre for Crime and Justice Research, Strathclyde: University of Strathclyde.

[xxi]A limitation that others have also raised as disproportionate and punitive in previous rounds of consultation:

[xxii]Scottish Government, Reconviction Rates in Scotland: 2014-15 Offender Cohort;Hirschi, T., and Gottfredson, M. (1983) Age and the Explanation of Crime, in American Journal of Sociology, 89(3), 552–584; Moffitt, T. E. (1993) Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, in Psychological Review, 100(4), 674–701; Moffitt, T. E., Caspi, A., Harrington, H., and Milne, B. J. (2002) Males on the lifecourse-persistent and adolescence-limited antisocial pathways: follow-up at age 26 years, in Development and Psychopathology, 14(1), 179-207; Laub, J. H. and Sampson, R. J. (2006) Shared Beginnings, Divergent Lives: Delinquent Boys to Age 70, Harvard University Press.

[xxvi]Ministry of Justice (March 2013); Analysis of the impact of employment on re-offending following release from custody, using Propensity Score Matching. 

[xxxi]Howard League Scotland (forthcoming) Unlocking Scotland: Life Sentence and Long-Term Prisoners.