sentencing

Presumption Against Short Sentences (PASS)

We are pleased to report that on 26 June 2019, the Scottish Parliament approved the Presumption Against Short Periods of Imprisonment Order which extends the presumption against short sentences from 3 months or less to 12 months or less. This is something which we have been advocating for many years, arguing that prison should be reserved for those who have committed the most serious of offences and who pose the greatest risk to public safety.

We were invited to give written evidence to the Justice Committee in their scrutiny of the Presumption Against Short Periods of Imprisonment (PASS) Order, in which we highlighted that short prison sentences had been shown to be less effective than well-resourced noncustodial measures in preventing reoffending and were also more damaging to those on whom they are imposed.

We drew attention to the fact that low level crimes, which attract short custodial sentences, are often linked to disadvantaged circumstances, mental health problems and addictions and that even a short period 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. We also highlighted that custodial sentences particularly disadvantaged women, families and children.

Noting that the current PASS, set at three months, has had no significant impact on the size of the prison population, we suggested that extending the presumption would only have limited scope to counter Scotland’s over-reliance on imprisonment as a punishment. We broadened the debate to remind us all that to achieve any significant reduction in the prison population, we would also need to reduce the number of long prison sentences imposed (especially life sentences) as well as the number of prisoners on remand.

We shared others’ concerns that sentencers had to have confidence that alternative disposals, such as Community Payback Orders, would be adequately resourced and there would need to be significant immediate investment in non-custodial provisions. We also called for the extension of the presumption to be monitored to ensure there was no up-tariffing.

We were also invited to give oral evidence to the Justice Committee on 4 June 2019, at which our Committee Member, Dr. Katrina Morrison, reiterated our views whilst suggesting that “we need to having conversations about what punishment is, and what it isn’t, in order to reduce the prison population” – a point which was later picked up on in a Scottish Parliamentary Debate about Whole Life Custody (Scotland) Bill.

The order will be made by the Cabinet Secretary for Justice on 2 July 2019 and will come into force on 4 July 2019, with the presumption applying to offences committed thereafter.

Howard League Scotland Written Evidence

Howard League Scotland Supplementary Written Evidence

Howard League Scotland Oral Evidence

Justice Committee Report

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

 

HLS Convenor, John Scott QC, Annual SACRO Lecture

Howard League Scotland Convener, John Scott QC, delivered the SACRO annual lecture, offering a human rights analysis of restorative justice as a means of having both victims and offenders at the heart of the criminal justice system.

Listen to the talk here: youtube 
Follow John on twitter

Lord Carloway Drummond Hunter Lecture - full paper

The annual Drummond Hunter Lecture was a great success this year, with over 200 people in attendance to hear Lord Carloway discuss The Purpose of Sentencing – From Beccaria to the OLR and Beyond’.

You can find a full copy of his talk here: Howard League Scotland Drummond Hunter Lecture 2014

Prison Policy in the News

The need for penal reform in Scotland appeared on the front page of The Herald this week as Lord Carloway highlighted the high rate of Scottish imprisonment. Engaging in this public debate, The Howard League Scotland sent a letter of response which was published on the 18th of January, which read:

Scotland should have a great sense of hope and almost relief that at last a judge has come out publicly with what is needed to be said about sentencing. Those of us in The Howard League for Penal Reform in Scotland (HLS) are hugely heartened by the front page splash in The Herald of 14 January headed “Carloway: we need culture shift in prison sentencing”. We all need this culture shift to meet the needs of victims and offenders (remembering too that individuals can at different times be victim or offender), to make Scotland a safer place.

Imprisonment does not make one less likely to reoffend on release, quite the opposite-despite the best efforts of our prison service. Whatever good work is done in prisons can be negated by the difficulties experienced on release. The same work with offenders is more effectively done in the community-but of course it does need to be available and adequately resourced. Scotland locks up a disproportionate high number compared with other countries and too many prisoners are poor and vulnerable, have disadvantaged backgrounds and mental health or other issues. All of this is well supported by research and those who work in criminal justice and by those in wider society with knowledge and understanding of Scotland’s penal policy and practice.

To make a culture shift it is essential that the judiciary are on side with and preferably driving the change, as was the case in Finland when that country decided to substantially reduce its prison population twenty or more years ago. They did this successfully and with no adverse impact on offending rates. It is, therefore, the most promising indication of the possibility of change ever seen in Scotland, to have Lord Carloway recognise all the above, as the article says “it would be hard to disagree with the “generality” that the prison population is too high and that in some instances the wrong people are behind bars.” This is especially the case when crime is at a 39-year low.”

Lord Carloway’s statement will be welcomed by thoughtful and creative judges who seek to use their discretion in innovative ways to ensure they mainly hand down effective community sentences which are the most likely to reduce recidivism. Those judges, and let us assume it will be the vast majority, will want the opportunity Lord Carloway promises to learn more about current evidence in the field of criminology, potentially ground breaking transformation currently being promoted within Scottish prisons, and the programmes available for offenders within community sentences. It would be shocking if any judge did not want to be “up to speed on modern thinking and practice” and to “refresh their ideas of what is available in terms of practice”.

Many judges, of course, are already up to speed on this and are hindered in progressive, effective sentencing by the lack of, or patchy nature of, community sentences facilities. The culture change must include a shift from investing in prison buildings to the more cost-effective early intervention, restorative justice and other justice work in the community.

Read Further: Carloway: We need culture shift in prison sentencing

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