HLS Welcomes Increase in Minimum Age of Criminal Responsibility

HLS are pleased to see the Scottish government has finally brought forward a Bill that will raise the minimum age of criminal responsibility (MACR) from 8 to 12. Having a MACR set at eight years old meant Scotland had the lowest minimum age of criminal responsibility in Europe and one of the lowest in the world. At Howard League Scotland we have long campaigned for this change and are pleased to see the government move forward with this plan. This finally brings the MACR into line with the minimum age of prosecution.

However, we hope this is just the beginning and we would like to see consideration given to raising it further still. Raising the MACR does not mean refusing to hold children accountable for their actions, but it does mean ensuring that we avoid the criminalisation of children, and that we pay due attention to their welfare and educational needs. While this now means we have a higher MACR than England and Wales (where it is ten years old), the bar for measuring our success should not be limited to comparison with other UK governments. Scotland should aspire to be a European and international leader on the MACR as a matter of social justice and youth justice. 

The Minimum Age of Criminal Responsibility: An International Snapshot: 

  • 13 years old in Greece and Poland
  • 14 years old in Bulgaria, Spain, Italy, Germany and Austria
  • 15 years old in Denmark, Norway and Sweden
  • 16 years old in Portugal and Romania and
  • 18 years old in Brazil and Luxembourg, and in Belgium for all but the most serious offences.

HLS welcome today’s change in the MACR. However, we hope this sparks ongoing debate and discussion about raising both the MACR and minimum age of prosecution further.

Read More:
Scottish Government: Minimum age of criminal responsibility


Scotland Must Reform Life Sentences

Scotland’s punitive sentencing system has come under scrutiny today by Prof Dirk Van Zyl Smit, who was invited to Scotland by HLS. HLS are very pleased that the need to reform life sentences in Scotland has received wide coverage in today’s Herald. There it is reported that in the Netherlands there are 30 lifers, compared to Scotland’s 1000. Research being conducted by Prof Van Zyl Smit shows that Scotland sentences more people to life than England and Wales. A startling research finding has also revealed that Scotland has double the number of people on life sentences than France. This evidence about Scotland’s automatic life sentences helps partially explain Scotland’s incredibly high prison population and calls into question punitive suggestions for whole life tariffs.

The reasons for the disparity is that in other countries it is acknowledged in sentencing policy that all murderers are not dangerous and do not require life long exclusion. HLS are quoted in the news coverage. We strongly advocate for a reduction in the use of automatic life sentences. If Scotland aspires to be the develop the most progressive social policy in the English-speaking world than we must abandon penal policy in Scotland that is unnecessarily retributive. As Dirk Van Zyl Smit is quoted as saying: ‘Scottish people often have an idea of the criminal justice system as not being as harsh as elsewhere. At the top end that is not true’. 

  • Tickets for Dirk Van Zyl Smit’s talk are available here


International Women's Day

On International Women’s Day we think of the almost 400 women who are currently detained in Scottish prisons.

News released today by SPS shows images of a new smaller prison for women to be opened in 2020. Scotland has a history of trying to be innovative in regards to women’s imprisonment. Yet the failure of these innovations is also an inescapable part of Scotland’s contemporary prison history, as self-harm and suicide have continued inside the prison, and women’s poverty and social exclusion continue to be entrenched by having been imprisoned. And despite efforts, over the last 40 years we have witnessed the steadily increasing number of women imprisoned in Scotland. But there are lessons in failure that can help us re-think the future of women's penal policy so that it can meet the demands of social justice.

We welcome that the new prison will hold around 20 women. HLS firmly believe that the social and rehabilitative value of small prisons far outstrips the expedient value of economies of scale of larger prisons. But real penal reform and innovation will not be found in a small scale expansion of the women’s prison estate, but through decarceration. We hope that this new prison is a development in that direction. Scottish government should formally commit to reducing the size of the women’s prison population to at least half of what it currently is. With public and political backing, Scotland can take this opportunity to be a world leader in social justice and penal reform by radically cutting the number of females in custody.

However, if we do reduce the prison infrastructure to hold less than 200 women and girls (which would be half the current number), how can the government guarantee against overcrowding? While the recent plans in the Management of Offenders (Scotland) Bill make provisions to extend electronic monitoring which can alleviate prisoner numbers, as HLS recently wrote, this brings with it other risks to citizenship and community life. We should not lose sight that social justice is not only about imprisoning better, but imprisoning less.

Crime falls, but the prison remains

The Scottish Government has just released their annual Court Proceedings statistics. As a result, what we have learned is that the number of people being convicted has fallen. This is welcome news, meaning that fewer people in Scotland become entangled in the criminal justice system. These changing conviction rates are in line with a general fall in crime that has been experienced here and elsewhere, the reports highlight that crime in Scotland is now at a 43 year low.

While the Cabinet Secretary for Justice, Michael Matheson, welcomed these findings, this data revealed patterns of punishment that HLS remains seriously concerned about. The average sentence length has risen to just over ten months, a 26% increase over the last decade. This figure may also be artificially deflated because it excludes life imprisonment and indeterminate sentences, which are the longest prison sentences. Therefore, while the number of people being convicted has fallen, ever increasing sentence lengths means the average daily prison population has continued to be consistently high. With an average 135 people per 100,000 being incarcerated, Scotland has one of the most extensive prison systems in Western Europe. Any advances, whilst encouraging, remain overshadowed by the pervasiveness of the Scottish prison.

The good news is further complicated by examining changing sentencing patterns for all disposals across the last ten years. Increasingly, the courts are imposing community sanctions. It appears, however, to be at the expense of the fine, as the use of the prison has stayed the same, with between 13-15% of all of those sentenced over the last decade receiving a term of imprisonment. Despite significant and important changes in court disposals and crime rates, the prison remains an enduring and steadfast feature of the Scottish penal landscape. 

A large part of the motivation behind developing alternatives to custody, such as community disposals, was informed by a recognition that the ‘prison may sometimes do good, but it always does harm’ (Scottish Prisons Commission, 2008). But community sanctions are more intrusive than fines, they are certainly not a soft option. If they are in fact displacing the financial penalties rather than the prison, this should be seen as a potentially serious development.

HLS strongly advocates for a reduction in the frequency and the severity of custodial sentences: less people should be imprisoned and sentence lengths should be curtailed. We need to address what appears to be a worrying pattern emerging in Scotland of longer prison sentences being handed down by the judiciary for all crimes. Our vision is for a Scottish sentencing system that reflects the values of social justice in which the prison is used parsimoniously. With crime at an all time low, this should be seen as an opportune moment to reverse Scotland's persistently and troublingly high use of incarceration.


Read More: 

Criminal Proceedings in Scotland, 2016-17
Vision for Penal Reform in 2018


Proposed Advances in Electronic Monitoring

The Scottish government recently introduced the Managment of Offenders (Scotland) Bill. HLS cautiously welcomes the proposed changes to electronic monitoring as a means to directly and assertively reduce Scotland’s troublingly high imprisonment rate. Our wariness, however, is rooted in our concerns about criminal justice net-widening. As we recently wrote, an increase in community sentences over the last decade has not impacted the rate at which Scottish courts give prison sentences. Moreover, the expansion and refinement of electronic monitoring (EM) poses other potential issues for social justice, desistance and citizenship, which HLS remains apprehensive about.

Part of the appeal of EM is that it is considerably cheaper than prison. However, there needs to be sound penological reasons underpinning its use and development. The Scottish government have made it clear that they are interested in reducing re-offending. As a tracking technology EM has no inherent rehabilitative capacities, however, and we are concerned that expanding its use may in fact undermine criminal justice social work. EM cannot replace the human contact and the positive relationship between a social worker and their supervisee. The encouragement and guidance provided by probation can be vital in supporting a person’s rehabilitation, this includes helping someone access education and employment, secure housing and address addiction. Moreover, EM cannot counter the other issues that often underlie offending, namely, socially inequality and lack of opportunities. Monitoring should not be misrepresented as centrally a tool for rehabilitation. Its use, therefore, should be only one among a suite of community supervision and rehabilitation measures.

If that becomes the case, and EM is but one tactic in an integrated programme of community supervision and surveillance, 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.

HLS are also particularly concerned about the proposed creation of exclusion zones that 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. 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.

Relatedly, we know that in Scotland, like elsewhere, people sentenced to prison are largely drawn from the most disadvantaged communities. If the use of EM follows this pattern – and those being tagged and GPS tracked are concentrated in the most marginalised areas – the Scottish government risks converting neighbourhoods that are already hindered by social exclusion into prison-like places, where large sections of the population have restricted movement and liberty. Any attempt to reduce prison numbers and achieve the aims of social justice is seriously undermined if EM inadvertently creates communities of confinement across Scotland.

Any form of tagging and monitoring should be developed with these concerns in mind. EM can support rehabilitation, offer community protection and keep people within their families. But achieving the goals of community justice while mitigating the serious social and civic risks will require a delicate and critical balance. To begin to address some of these issues, and emphasise EM’s potential strengths, longer periods of supervision could be organised on a graded system, becoming increasingly less onerous, with stipulations and exclusions reduced, as time passes. As the Council of Europe wrote, ‘EM can certainly be used in ways which make an offender feel trusted, an important ingredient in the rehabilitation process’. Finally, long-term research is needed to carefully monitor the economic, rehabilitative and qualitative impact of EM on individuals, communities and Scottish civic life.

Read More:

The Scotsman: Scottish criminals ‘could be barred from entire cities’
BBC News: Use of electronic tags to be extended
Iriss (2017) Electronic monitoring in the criminal justice system