PRISONERS (CONTROL OF RELEASE) (SCOTLAND) BILL – STAGE 3

BRIEFING AND ANALYSIS

Provided by:

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

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

1. Inadequate consultation and evidence gathering

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

Lack of scrutiny of the major amendments at Stage 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Increased potential for ECHR challenges

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

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

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

4. Financial implications of the Bill

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

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

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

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

CONCLUSION

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

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

22 June 2015

BACKGROUND INFORMATION:

SPICE briefing on Prisoners (Control of Release) (Scotland) Bill http://www.scottish.parliament.uk/ResearchBriefingsAndFactsheets/S4/SB_1...

Justice Committee’s Stage 1 report on Prisoners (Control of Release) (Scotland) Bill http://www.scottish.parliament.uk/S4_JusticeCommittee/Reports/jur-15-08w...

Written submission from Drs Monica Barry and Beth Weaver, University of Strathclyde, Stage 1
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/AER10._D...

Written submission from the Howard League for Penal Reform in Scotland, Stage 1
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/AER7._Ho...

Written submission from Professor Fergus McNeill, University of Glasgow, Stage 1
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/AER9._Pr...

Written submission from Positive Prison? Positive Futures, Stage 1 http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/AER6._Po...

Written submission from Professor Dr Cyrus Tata, University of Strathclyde, Stage 1
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/AER11._D...

Written submission from Dr Monica Barry, University of Strathclyde and Professor Fergus McNeill, University of Glasgow, Stage 2
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/P14._Dr_...

Written submission from the Howard League Scotland, Stage 2
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/P15._How...

Written submission from Professor Fergus McNeill, University of Glasgow, Stage 2
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/P13._Pro...

Written submission from Positive Prison? Positive Futures, Stage 2
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/P17._Pos...

Written submission from Social Work Scotland, Stage 2
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/P12._Soc...

Supplementary written submission from Social Work Scotland, Stage 2
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/P12a._So...

Written submission from Professor Cyrus Tata, Strathclyde University, Stage 2
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/P19._Pro...

Supplementary written submission from Professor Fergus McNeill, Dr Monica Barry and Professor Cyrus Tata
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/Tata-McN...