Your Scotland, Your Voice: A National Conversation

Horrendously busy this morning, so just a helpful link for those of you champing at the bit to read the SNP Scottish Government's much-anticipated white paper entitled Your Scotland, Your Voice: A National Conversation, published this crisp St Andrew's Day morning. The document "sets out the options for constitutional reform in Scotland. It continues the debate started by the National Conversation."

You can read the full paper here. Analysis later.

Big decision from Scots Court of Criminal Appeal

Another grim outing at the Court of Criminal Appeal in Edinburgh this week, of wider significance for those of us with in interest in criminal justice and the prison system. The central issue? The guideline punishment parts of Scottish life sentences imposed in murder cases. Arthur Hamilton, sitting in his militaire capacity as Lord Justice General, along with Lady Dorrian and Lords Reed, Clarke and Mackay of Drumadoon were formally hearing an appeal lodged by the Lord Advocate. Elish Angiolini appealed the minimum prison terms imposed on Brian Boyle, Greig Maddock and Robert Kelly under the Criminal Procedure (Scotland) Act 1995, on the grounds that the toll of years each was sentenced to was “unduly lenient”. All three were convicted of murder, Boyle and Maddock arising from the same, utterly appalling treatment meted out to Robert Bowie. The harrowing facts and circumstances of his death are set out in detail in the judgement, described by Hamilton as “redolent of the medieval horrors of execution by burning.” Kelly killed Agnes Mechen in 2002. All three saw their minimum tariffs in prison extended by the court.

However, Scotland’s chief public prosecutor also determined to make “use of the opportunity presented by these appeals to invite this court to give guidance under section 118(7) of the 1995 Act on punishment parts in murder cases.” Most of you will be very familiar with the formulation that a conviction for murder attracts a mandatory life sentence. You will also have heard radio announcers crying “x sentenced to 16 years in prison for the murder of y”. Life doesnae mean life. Well, not necessarily. Broadly how sentencing in this area now functions is that a punishment part of the sentenced is set by the judge, before which the convicted murderer cannot be paroled. Release is not, therefore, immediately promised by the punishment part of your sentence coming to an end. That becomes a matter of parole, handled by the relevant authorities.

The Lord Advocate was getting at this first bit of the sentencing. She asked the Court for general guidance on judges’ understandings of what a typical minimum or maximum sentence should be. Although I’ve no way of validating this claim empirically, the judgement suggests that an understanding of a 12 year ‘starting point’ for murder convictions had sprung up – reflected in scholarly literature – with extra years accumulating based on aggravating or mitigating features in the circumstances. After the case if Walker involving a corporal in the Royal Scots who shot and killed three other soldiers - retired David Cunningham, Terence Hosker, John Thomson – robbing them of the army payroll they were transporting. On appeal, Walker’s minimum sentence was reduced from 30 to 27 years.

Said Angiolini before the appeal:

“As lord advocate I consider that is inadequate to reflect the wide range of conduct which may amount to murder and fails to reflect adequately the exceptionally serious cases of murder, particularly those involving multiple victims, terrorism or persistent sexual violence against vulnerable adults or children.

"I am asking the court to consider issuing a guideline opinion which will recognise that 30 years is not the absolute maximum punishment part and recognises explicitly that in some exceptional cases a punishment part which exceeds the natural life expectancy may be appropriate."

Said the court this week:

“A punishment part as low as twelve years would not be appropriate unless there were strong mitigatory circumstances, and a punishment part of less than twelve years should not be set in the absence of exceptional circumstances - for example, where the offender is a child.”

The Lord Advocate apparently particularly emphasised knife crime in her submissions, which the court. The judges replied:

“We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths.”

Although the court uses the rhetoric of deterrence, this seems to me a bit of a red herring. Speak to criminologists who make deterrence incentives their life’s work, who explore it empirically. The prospect of a distant, cold disposal of your murder case in this way is profoundly unlikely to seep into the public consciousness. That is not to say that we might not wish to impose steeper sentences on those who gouge and shank their victims. However, deterrence is unlikely to be part of the justification for it. Nevertheless, in circumstances where death results from, the court directs that:

“Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate. Other than in exceptional circumstances we would expect punishment parts in cases of that kind to be at least sixteen years, and they might be significantly longer depending on the circumstances.”

Repudiating any suggestion that 30 years should be the maximum sentence for murderers, the court said:

“In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than thirty years may, subject to any mitigatory considerations, be appropriate.”

Should this be welcomed? Certainly, anyone who reads what Boyle and Maddock did cannot be unmoved. The urge to punish is, understandably, very strong. Moreover, after being so apparently cavalier about their hideous brutality to one life - arguments from public safety become strongly relevant. Personally, I've a deep ambivalence about the whole imprisonment project. Why is 16 years an improvement on 12? What are the purposes of such incarceration? Is it easy to have confidence in the judicial calculation and its rationality? C'est difficile...

Tories on Human Rights again...

I’ve discussed some Tory positioning on the Human Rights Act previously, both outrageously misleading and more considered. As (potential) Tory government inches towards plausible imminence, those of us with an interest in these matters should attend closely to the messages emanating from the blue bowels of Conservative would-be ministers and cronies. In this context, I notice that Michael Howard has been blogging over at the Tory Blue Blog on the proposal to replace the jurisprudence of the European Convention with a "British Bill of Rights". Although I don't have the time this morning for a thoroughgoing rummage through Howard's position, I intend to revisit it a bit later this week. Do take a look if you are curious.

The naming of parts: gender history & Holyrood...

Just an interesting titbit for today. Via Holyrood Magazine, I notice that it has occurred to our parliamentarians that they are missing a trick. Some rationalising namer of parts decided simply to name Holyrood’s Committee Rooms by number, one to six. Couldn’t we give them more interesting names, suggests the SNP’s gopherish Kenny Gibson? After all, most institutions christen their downstairs toilets and broom cupboards after some heavy-browed former patron that the contemporary membership want to cosy up to. Personally, I’m in favour of naming Holyrood’s gents facilities the “Jack McConnell Memorial Privvy”, but the former FM may gracefully, bashfully repel this honour. Actually, Gibson’s scheme is not a crashingly idiotic one – reflected by the news that apparently the Parliament’s Corporate Body agrees with his suggestion.

Now the question becomes – who to honour? This is the list quoted in the magazine: James Clerk Maxwell, Alexander Fleming, Adam Smith, James Watt, John Logie Baird and William Wallace. An interesting list, for a number of reasons. Firstly, their vintage – and how they relate to dominant account of Scottishness and the mythos of ‘Great Scots’. Will jaunty still-Jacobites empty their Edinburgh watering holes and petition for Charles Edward Stuart’s inclusion? Philosophical partisans of David Hume scratch out Smith’s name? Holyrood Magazine, absolutely rightly in my view, interrogates the list on another front. Where are the women? As they argue, “Are the Parliament honestly saying they couldn’t find a single Scottish woman to honour? That not one female Scot has made a contribution our life, our learning, our development, our history worthy of honouring”? History is not gender-innocent in this respect, simple memory and uninterrogated prominence not to be trusted. Women’s absences and silences in Scottish history are progressively being addressed and their lives and contributions uncovered by the work of members of Women’s History Scotland and others, in academic garrets across the country.

If their imagination simply fails them, our tribunes would do well to consult the Scottish women’s history movement’s recent and sterling publication – The Biographical Dictionary of Scottish Women (2006). The Dictionary contains entries on 830 Scottish women, from remotest historical memory to the present. 280 scholars contributed to the mammoth, 448-page recognition of women’s essential place in the warp and woof of Scotland’s storied past. The group have also produced, under the editorial steer of Lynn Abrams, Eleanor Gordon, Deborah Simonton and Eileen Janes Yeo, Gender in Scottish History since 1700 (2006) which is an important part of developing a more acute appreciation of the way ideas of gender are implicated in any understanding of modern Scottish history. I applaud the work of Women’s History Scotland – and prod our parliament folk towards their labours. It would be absurd to turn our parliament into another monument to masculinity, leaving the women of the past forgotten, overlooked. Other candidates are overlooked for other reasons. In particular, I wonder how many Scots are even aware that Adam Smith was from Fife? How many are aware of Adam Smith at all? While re-Christening their rooms seems like a nice idea, injecting a little more character to the parliament – in doing so, lets not replicate the gendered partialities of the past.

Who knows about booze and prison?

On Thursday 26^th of November, interested tribunes will congregate in the Chamber for their stage 1 debate on the following motion:

S3M-5177 Kenny MacAskill: Criminal Justice and Licensing (Scotland) Bill—That the Parliament agrees to the general principles of the Criminal Justice and Licensing (Scotland) Bill.

Usually the star turns at these justice debates are members of the Committee who get private divisions off their chest in the hollow expanse of the debating rooms. Them, and sundry ministerial attendance and their respective opposition counterparts. Few others nudge their bottoms out of their offices. Perhaps they watch the exchanges on their internal parliamentary TVs. It will be interesting, therefore, to see what the turn out is on Thursday. As you can see – the motion is impressionistically broad, considering the wealth of themes which the Bill addresses, from coordinated criminality to the increasingly politically shrill exchange of thesis and antithesis on the question of short term prison sentences, and the proposed presumption against them. Given this is a political firecracker, I imagine attendance risks being a little higher than past outings.

In that context, tone is important. It is all very well to disagree – but how will Labour and the Tories do so? The SNP rely, broadly speaking, on technical, social scientific evidence. How to reply? One can, of course, pick away at the surety of the study. Raise doubts, and doubting, insist on public policy paralysis. Alternatively, instead of haggling over the research details – you can resort to normative “sod the consequences” sorts of arguments. “Off to choky, they deserve it!” – huzzah for prison, et al. The parliamentary arithmetic is important here. We can broadly expect a coalition forming for this policy among the SNP (47), Liberals (16) and Greenies (2), 65 votes. Enough, if carried through to the third reading, to pass the measure and sod the reactionary huddle of 62, if Tories and Labour get together to oppose the idea. This, of course, assuming that there are no dissidents in either court. The reactionary huddle can thus reconcile themselves to defeat from the get go. Presumably, their interest in the wider electoral economy is realising the defeat which suits their narrative best. Dull dog repetitions of “soft touch” seem to be the slant that both Baillie Bill Aitken and the Baker Swine Pursuivant are pursuing. They’ll have to outdo each other for parliamentary pitbull, hang ‘em and flog ‘em status. Although neither are terribly plausible ‘hard men’ at first glance, in the race to the bottom, bets are on as to which wheezy carcass will trundle the most briskly. Given the qualitative evidence of the People’s Baillie’s interest in keeping in shape through a “cheesy dance” regimen, my bets are on the Tory coot.

Debates on short term prison sentences contribute, I’d suggest, to developing approach to Government vrs opposition arguments in Scotland – where the SNP emphasise evidence vrs opposition gut(sy) reaction on difficult public policy questions. In minimum pricing for alcohol, we can see the argumentative structure replicated. You’ll have noticed that the SNP have shifted their public (but obviously, not parliamentary) advocacy of the policy towards the theme of health rather than criminal justice and licensing. While Kenny is hardly neglecting themes of his “cooking lager”, ideas of public health and a discourse of doctor knows best, represented by the healthy intervention of Nicola Sturgeon, is being dragooned into service against those opposed to the policy. By framing the debate in terms of professional knowledge-claims – either those opposed to the measure must produce their own professional knowers – or shift ground. Certainly, Libertarian folks in Scotland must be tugging at their roots so long as the policy forum is animated by technical questions – while neglecting directly implicated concerns of choice, liberty and state non-interference. Then again, Labour wouldn’t adduce such an argument anyway. And thus, their arguments are thrust back into the technical sphere or a return to the bag is necessary to scrabble around for charismatic hammers to thump the SNP government with.

Are you a Scots Shakespeare hidden in the wings?

Just in case anyone among my readership are bashful but budding writers, I wanted to draw your collective attention to the Open.Stage Playwriting Competition being run by Glasgow’s Tron Theatre.

Open to all folk living in Scotland or of Scots stock loitering in the rest of the British Isles over the age of 18, the competition invites a synopsis of the proposed theatrical yarn and 20-odd pages of your writing to give the judges a sense of your capacity to realise the proposed material. After the closing date at 5pm on Friday 18^th of December, the three submissions determined to be the nattiest by a panel of Scottish theatre’s high heid yins will go forward as finalists. The three playwrights will be given £2,000 and mentored as they coax the little shoots of their plays into full flower. Bringing the competition into the digital age – and encouraging public participation – the three finalists will then have to film a trailer of their would-be bit of art, which the common footsoldiers of the stalls will vote on, with an eye to its theatrical interest to them. The winner of this vote will then be professionally staged by the Tron Theatre Company as the flagship production of their Autumn 2010 season. The disappointed pair will also get a rehearsed read-through of their material at the Tron – and I imagine, if they’re worth the effort, the plays will have a good chance of catching the eye of one of big fishes that slap about in Scotland’s small arty pond. The small print also reveals that the winner will receive the not-unreasonable sum of £6,560 for his or her labours.

Sitting in judgement over the synopses are Andy Arnold, Artistic Director of the Tron, Jay Smith, well-known actor Peter Mullan, Vicky Featherstone who is Artistic Director and Chief Executive of the National Theatre of Scotland, Janice Forsyth from off the tranny, Davids Greig & Harrower, successful playwrights, Keith Bruce arts hack for the Herald and Julie Ellen of the Playwrights’ Studio Scotland, based in the Centre for Contemporary Arts in Glasgow. It is a competition of amazing potential and significant possibility. Any among you with a dramatic and literary bent who get an itch and consider giving it a go – I’d strongly encourage you to enter. As a lethargic, slothsome sort of person myself, it is all too easy to see these little possibilities pass one by, without even dignifying them with a stab. The excuses are pretty thin since for this competition, you don’t have to mint a perfectly pitched 90 minute performance – only a inspirational précis and a series of brisk vignettes.

For any whose interest is piqued, all the relevant information can be found on the Tron website here.

Supreme Court UK: Unionist project

I suspect lawyers of a certain vintage will find the transformation difficult. For years, it has been House of Lords decision which have been at the apex of England, Wales and Northern Ireland’s judicial structures and the court of last domestic resort for Scots civil appeals. Now, at last, the Supreme Court of the United Kingdom has come alive. The old Law Lords have donned their new-weaved robes, invaded the Middlesex Guildhall and set to their jurisprudential tasks. Born of tripartite constitutional theory and a borrowed American obsession with the notion of executive-legislative-judicial division, it was always predictable that other political projects would attempt snag themselves on the long court robes of this “clarifying” measure, pursuing their own ends while change is in the air.

The aspect I wanted to raise in particular is how moving from the quiet institution of the House of Lords – composed of a mixed membership, including Scots lawyers – has been seized as a symbolical moment for a new Unionism. From a legalistic perspective, the Court’s claims to supremacy are partial at best. In the United Kingdom’s plural jurisdictions, for instance, criminal appeals cannot wend their way south. From a Scots devolutionist perspective, perhaps the most significant aspect of the new Court’s jurisdiction is its ability to hear devolution minutes under the Scotland Act 1998 and on the limits (and potential legislative and ministerial excesses) in exercising powers devolved. It is, therefore, an unequal sort of supremacy the court, as constituted, can exercise.

What interested me in particular, however, is how the architectural and legislative shifts which moved the Law Lords off their red benches and into designated judicial space has accumulated a Unionist semiotics which are strongly political. Glance at the symbol of the Court, left. English rose, Welsh leek, Scots thistle and Northern Irish flax all mingle at the roots, creating a complete circle. About this verdant knot, omega circumscribes, apparently referencing the Supreme Court’s finality. Designed by Yvonne Holton, Herald Painter at the Court of Lord Lyon in Scotland, I think it’s a handsome enough symbol. In context, it is, however, also a highly political account of the new judicial body – the institution of the Supreme Court being re-imagined through a symbolically unionist lens. Unlike the old House of Lords, this imagery explicitly ties Northern Ireland, Scotland and Wales in.

The court also has a pop-art carpet (right) designed by Sir Peter Blake which replicates the idea of the court as representative of jurisdictions and nations united. Of course, you might say – its just a dirty bit of carpet and a magic picture. We can pull up the former or paint out the later. Or like old claims to be King of England Ireland and France – just muddle along and hope nobody notices. My point is that it is interesting, among all the alternative choices of symbolism – one can think of innumerable images appealing to neutral justice and its scales of judgement - that a directly unionist image and account of its character was selected for this new court.

Andrew Motion, ex poet laureate, precisely replicated the same themes in his pretty trite poem, which is now chipped into the court’s walls…

Tides tumbled sand through seas long-lost to earth;
Sand hardened into stone – stone cut, then brought
To frame the letter of four nations’ laws
And square the circle of a single court.

Here Justice sits and lifts her steady scales
Within the Abbey’s sight and Parliament’s
But independent of them both. And bound
By truth of principle and argument.

A thousand years of judgment stretch behind –
The weight of rights and freedoms balancing
With fairness and with duty to the world:
The clarity time-honoured thinking brings.

New structures but an old foundation stone:
The mind of Justice still at liberty
Four nations separate but linked as one:
The light of reason falling equally.

Stir into the pot this fact. On 15/12/2008, the Scottish Government announced that Professor Neil Walker of the University of Edinburgh’s School of Law is undertaking an analysis about cutting the civil appeal from the Court of Session to London. There are cogent reasons for this in terms of legal understanding. If law is something one knows about – how appropriate is it for the final deciders on questions of Scots civil law to be English lawyers, with perhaps only the most passing and incidental of knowledge of how things are imagined by legal souls north of the border? Professor Walker has been asked to report back by 01/11/09, but I’ve not heard a peep about the position he takes or the argument he makes yet. Cutting the civil appeal stream to this new Supreme Court would (probably) require Westminster legislation. In which context, even if reasonable grounds so to do are suggested by Walker, given the choice to turn the Supreme Court into a claim about the permanence of Union, I’d be astounded if the Westminster powers let this happen.

Justice & Mercy (2)

Just a few links to keep you amused this morning. Firstly, a brief return to the discourse surrounding the rights and wrongs of releasing Megrahi from prison.

One of the most interesting elements of that discourse, speaking as an academic(ish) person, was the way in which conceptual accounts of mercy and justice and their relationships with one another might entail a particularly conclusion or response from the Cabinet Secretary for Justice (and Mercy). The way these arguments emerged and why they were used as they were is a question of sociological interest. Equally, broader questions about the identity of mercy and the ways in which we might want to or perhaps ought to distinguish if from justice in our public life is a matter of considerable philosophical interest. I suggested at the time that there is an important difference between the two concepts - and that mercy tempering justice is a rhetorical model and a decision-making process apt to collapse merciful considerations into a discussion of justice from which it will be difficult to escape, once the conceptual collapse of one into the other has occurred.

Precisely because of the interest of these questions, I wanted to bring a couple of articles to your attention, inspired by the subject, inspired by the events - and engaging with some of the questions, issues and concerns I've outlined. Both can be found on the splendid CjS collating resource on Scottish criminal justice issues. The first, "Justice Mercy and Punishment" was published in September and was written by Professor Antony Duff, of the University of Stirling's Department of Philosophy. The piece is relatively short, so I won't bother condensing it. Professor Lindsay Farmer brings us an alternative perspective, and responds to Duff's arguments in his article, published in November, entitled "Mercy & Criminal Justice: A reply to Anthony Duff". Professor Farmer teaches in the University of Glasgow's School of Law. I'd encourage anyone with an interest in the place (if any) which conceptions of mercy ought to occupy in our public life to give both a read.

Secondly, while I suspect anyone who stumbles into and wades through my peat-hags here will already have gambolled across SNP Tactical Voting's demure Lothians slopes, lest a single soul be left out, I wanted to carry a link to the mad op-ed article published in the Jerusalem Post on why Israelis should vote Scottish Labour. Or more precisely, why "Israelis should hope that the Labour Party beats the SNP". With snappy headlines like that, heaven knows how the Sun can afford to let Rob Brown's pithy talent go unhired. As with previous posts from foreign press coverage of Wee Scotia and our flytes, this encounter confirms the pleasures of narcissism and the piquancy of reading (amazingly skewed) accounts of your own culture being presented to other people. On another level, however, it is also totally outrageous, shot through with slurs and imputations which would be impossible to justify and generalisations which shamefully insult the intelligence of the populace.

Just the stuff to baptise the day, on a cold and windy Tuesday morn.

Labour & Tory Fatuous Huzzahs for Prison...

And so, we return to the Criminal Justice & Licensing (Scotland) Bill. It’s a hodgepodge of issues and concerns. Issues of sentencing are stacked beside attempts to criminalise serious organised crime, extreme pornography and the trafficking of persons. How old should people be before they are prosecuted? Is 12 years an appropriate threshold? What about the spouses of folk accused of committing crimes – should the powers that be be able to force them to stump up in the witness box? How many grey hairs is too many on your average jurors? Once we’ve dealt with that, another cavalcade of sections processes by – licensing of metal dealers and late night caterers giving way to alcohol sellers and their regulatory frame of reference. An amazingly wide list of concerns and considerations, which Holyrood’s Justice Committee have now ploughed through, producing their Stage 1 Report on the Bill on the 12^th of November.

I’ve been neglecting my favourite huddle of parliamentarians of late. Under my unwatchful eye, one has departed, unjustly unmourned. One of Labour’s fell-handed inquisitors, was shuffled out in Iain Gray’s recent reorientation exercise. No doubt the rest will miss Paul Martin’s pendulous interjections and the brief rests which were afforded by his pained, pachyderm attempts at the comprehension of witnesses. He has been replaced by one James Kelly, of whom I know bugger all. Elected MSP for Glasgow Rutherglen in 2007, according to his Holyrood profile, his personal interests include “Half-Marathons, Five-a-Side, Golf” and spending time with his family. Still, I’m sure he’s a scintillating conversationalist, for all that.

I can only assume, if the big boys didn’t exclude the callow Kelly from their deliberations, that brush-heid’s first just act was to vote against this section of the proposed bill. You’ll have heard of it. Indeed, it was about the only slice of the legislation which warranted any press consideration. It’s the section to introduce a presumption against sentencing offenders to periods of less than six months of incarceration in Scots jails. On which question, the Committee divided, wobbled and rejected the notion on the casting vote of the People's Baillie, Convenor Bill Aitken . What with the grunting Swine Pursuivant, Richard Baker girding his trotters to lead Labour’s charge against this measure, we can look forward to squealing debate at stages 2 and 3. The see-saw committee vote anticipates what will be a close run thing in the full parliament, with the SNP, Liberal Democrats and Greenies on one side (heaven knows where Margo is frolicking) against the arrayed chain-swinging ranks of Labour and Tory on the other.

The latter have largely limited their public pronouncement to snide asides about being “soft touch” and accusing the rest of bestowing fondler’s caresses upon the unjust and the villainous. This is pretty gutterminded stuff, bereft of substantive content, beneath the level that arguments about issues of such heft ought to operate on. Indeed, as the section I intend to quote subsequently will show, we are not in want of grounds for such an argument. Social scientific predictions are perilous enterprises. Predicting how organisational and bureaucratic changes impacts in wider society is a gambler’s art, considering the variables which tug social forces this way and that. The prison-proponents’ argument seems to be that they have the force of inertia on their side. If we are uncertain about what will be the outcome of our public policies – stick with what you know. Big prisons. More prisons. Longer in prison. And screw the lags locked inside. Even more strangely, questions of funding for alternative disposals is deployed as an argument to keep folk in prison – as if this was a cash-neutral position or one we can blunder on with without a single conscientious pang, fenced in in perpetuity from alternative policy suggestions. Brave, n’est pas?

In the hope of nudging the porker’s hammy rump into a more cogent position, I wanted to quote the whole of the section of the Justice Committee’s report and the fencing voices which emanate from it. Certainly, we can disagree with approach, disagree with the way the section is drafted – but lets try to disagree substantively – not just grunt and squeal incoherently, refusing to be drawn into a discussion.

Section 17: Presumption against short periods of imprisonment or detention

Background

169. Section 17 amends the Criminal Procedure (Scotland) Act 1995 to create a presumption against prison sentences of six months or less, so that they may be imposed only where the court considers that no other method of dealing with the offender is appropriate. Where such a short sentence is imposed, the court must state its reasons for that opinion, and enter them in the record of proceedings.

Evidence received

170. Many witnesses expressed support for this proposal on the grounds that short-term prison sentences are generally regarded as expensive and ineffective, both in terms of protecting communities and in terms of rehabilitating offenders and reducing crime.

171. In its written submission, Scottish Women’s Aid said that a presumption against short custodial sentences “may have a positive impact on certain offenders with chaotic lifestyles for whom prison is a ‘revolving door’”, but that perpetrators of domestic abuse do not fall into that category. The presumption could therefore “have a negative impact on women, children and young people experiencing domestic abuse”.

172. Clydebank Women’s Aid Collective agreed, saying that a presumption against sentences of six months or less would be “gendered in its impact. For women facing sentencing themselves it is likely to be positive. However, women affected by crimes committed against them by men may be affected detrimentally.”

173. Professor Alec Spencer of the Scottish Consortium on Crime and Criminal Justice said: “The use of short-term and very short-term sentences is complete eye-wash. It has no effect at all on reducing crime.” Indeed, he cited international research suggesting that where prison was used on its own, crime actually increases slightly.

174. Professor Spencer said that 81 per cent of prison sentences are for six months or less, and two-thirds of those are for three months or less; and that people sentenced to six months or less subsequently spend, on average, only around 23 days in prison. This did not allow time for prison staff to obtain the relevant information about the prisoner, assess them and arrange for appropriate interventions. As a result, he said, short sentences are a cause of frustration to prison staff, who have to spend a lot of time and effort accommodating people, but without the opportunity to help them address their offending behaviour.

175. His colleague Professor Fergus McNeill added—

“three things help people to stop offending: getting older and becoming more mature; developing social ties that mean something to them; and changing their view of what they are about as a person. Short periods in prison do not help with any of those three things.”

176. Dr Sarah Armstrong (University of Glasgow) referred to the Scottish Prisons Commission’s finding that many people in prison are repeatedly serving short sentences, in effect completing a life term by instalments but without access to the programmes and services available to those who are given a life sentence. She drew attention to research suggesting that short prison terms are not only ineffective but can be counter-productive, since people are more likely to engage in worse offending after they have been imprisoned than before.

177. Rona Sweeney, for the Scottish Prison Service, confirmed that for prisoners sentenced to a short period of custody, there was very little that could be done beyond meeting health care needs: “During those very short sentences we focus on undoing the harm that imprisonment has caused, because we know that many of the protective factors that support someone in not reoffending are damaged by imprisonment”.

178. Representatitves of Community Justice Authorities said that while there were occasions when short prison sentences was justified they were being used “far too frequently” and sometimes only because sentencers felt they had no alternative disposals available.

179. In its report, the Scottish Prisons Commission recommended a legislative presumption against custodial sentences of six months except where the judge is satisfied that a custodial sentence should be imposed having regard to one or more of the following: violent and sexual offences that raise significant concerns about serious harm; offences that constitute a breach of bail conditions; offenders already subject to a community sentence and/or with a significant history of failing to comply with community or conditional sentences; offenders subject to a release licence; offenders who do not consent to rehabilitative elements in a community sentence; and other sentences of imprisonment then being served by the offender.

180. Henry McLeish said that the Bill aimed to strike the same balance that the Scottish Prisons Commission had done. The Commission had considered the option of a statutory ban on custodial sentences of less than six months but—

“to preserve the independence of the judiciary and to take a commonsense approach, we rejected that option. Of the people who go to prison for less than six months, a small group have committed what I would regard as serious offences, one of which is domestic violence.”

181. Some witnesses questioned the basis upon which the six month dividing line had been selected. Cyrus Tata of the Centre for Sentencing Research (University of Strathclyde) said it was “not harmonious with the new summary powers for sentences of up to 12 months”, but that a more appropriate way to make the distinction would rely on the nature of the offence—

“If the argument behind the bill is that we should not imprison non-violent, non-dangerous offenders who might simply be feckless, we should focus on those types of cases. We should specify those cases, rather than a limit of six months, because the group of prisoners on sentences of six months or under will include—this will give the tabloids a field day—people who are convicted of dangerous and violent offences.”

182. Similarly, the Scottish Police Federation described the six month cut-off as “arbitrary”, pointing out that there are many habitual offenders who have no desire to comply with any court disposal and hence that short periods of imprisonment may well be necessary for even minor offences.

183. The experience of the High Court judges was that—

“under existing arrangements courts resort to short custodial sentences only where there is no realistic alternative … we doubt whether the proposed legislative changes will in practical terms achieve much.”

184. The Sheriffs’ Association went further, saying that arguments about the ineffectiveness of short prison sentences misunderstood their point. A custodial sentence was unavoidable, whereas community disposals “without the option of custody for breach, would be rendered voluntary”. Noting that a 30-day sentence was to be an option for breach of a level 1 CPO, the Association concluded—

“As a means of dealing with breaches of court orders, as a sharp reminder to some offenders of the consequences of breaking the law for repeated offending when all else has been tried, or to give the public some measure of relief from their activities, short prison sentences have a purpose.”

185. Mike Ewart of the Scottish Prison Service disagreed. In terms of giving relief to the community, his view was that a short-term sentence could do more harm than good in terms of recidivism and hence community safety. In terms of being the only alternative for offenders who have repeatedly breached community service orders or reoffended, he said that—

“if a community disposal was appropriate four or five times for a particular offender in particular circumstances, that disposal might still be appropriate if the only factor that has changed is the irritation of the criminal justice system with that character’s reappearance.”

186. Henry McLeish said that the Scottish Prisons Commission had considered the argument about community respite but rejected it—

“What people want in communities throughout Scotland is a long-term future in which the crime figures go down and people are less afraid of crime and can have a sense of security. The respite approach is no more than a short-term consideration.”

187. Dr Cyrus Tata also questioned the argument that custodial sentences are sometimes appropriate where a court has lost patience with an offender who has repeatedly breached the conditions attached to community sentences. Recent research challenged the assumption that such breaches were wilful, suggesting instead that many of those subject to such sentences had significant learning difficulties and simply failed to understand the conditions.

188. The Scottish Justices Association noted that, whereas the Scottish Prisons Commission had listed six circumstances in which a short sentence could be justified, no such list was included in the Bill, and it suggested that these should at least be set out in sentencing guidelines. Sheriff Fletcher, speaking for the Sheriffs’ Association, suggested that, with a statutory requirement to state reasons for imposing a short sentence, “the unintended result might be to slow down the court system while the judge makes up the short statement that he has to make”.

189. Professor Neil Hutton (Centre for Sentencing Research, University of Strathclyde) suggested that judges already recognise the need to impose custodial sentences only when non-custodial options are inappropriate. In his view, making it more difficult to impose prison sentences of six months or less could create a temptation for judges to impose sentences of seven months or more—

“This will produce the unintended consequence of a rise in the overall prison population. … A more appropriate way of reducing the use of short sentences would be to ask the Scottish Sentencing Council to develop a comprehensive inaugural set of guidelines which paid particular attention to defining the custody threshold in a way which reduced the overall use of short sentences of imprisonment.”

190. The Scottish Consortium on Crime and Criminal Justice said that the only sure way to achieve a reduction in short sentences would be to cap the number of places available for sentences of less than six months, so that, when the cap is reached, those given short sentences would be placed on a waiting list and their sentences suspended until a place becomes available.

191. The Cabinet Secretary for Justice said that Scottish Ministers would fully support any sheriff who feels it appropriate to use a short term prison sentence as a last resort. However, the problem of prison overcrowding had to be tackled, and he also wanted to “end the free-bed-and-board culture” in which “far too many people go to prison and sit there twiddling their thumbs” at taxpayers’ expense and to the frustration of the communities who have suffered from their behaviour. Through the Bill, he wanted to see people convicted of less serious offences given community payback orders in order to “free up our prisons to deal with the people who have to be there because they are a danger to our communities”.

192. Asked for clarification of the term “less serious offenders” and the types of crimes such offenders would have committed, the Cabinet Secretary said that ultimately that would be left to the Sentencing Council given the variable nature of common-law offences in Scotland and the need for flexibility.

Committee conclusions

193. The Committee agrees that there is a need to strike a proper balance between the imposition of short custodial sentences and effective community disposals. Additionally, the Committee agrees that there is a need to develop a range of community sentences in which the public can have confidence and which present the best chance of long-term rehabilitation of offenders. However, members were unable to agree on whether it was either necessary or desirable to create a statutory presumption against custodial sentences of six months or less in order to achieve that balance.

194. All Committee members recognise that the priority is to imprison offenders who (as the Prisons Commission said) commit offences so serious that no other form of punishment will do or who pose a threat of serious harm to the public. Committee members also recognise that those who have persistently failed to respond to non-custodial disposals may also have to be imprisoned. We acknowledge that this is, to a significant extent at least, what sentencers already aim to do, and that they do not lightly send people to prison if this is unlikely to benefit either them or those affected by their offending behaviour. We accept that short prison sentences do not normally achieve much by way of rehabilitation, that while they provide respite for victims and communities, this is only for a limited period, and that high re-offending rates tend to demonstrate that they have limited effect as a deterrent. Finally, we all recognise that the Bill, although undoubtedly intended to shift sentencing behaviour, leaves the final decision in any individual case to the court, thus allowing a short-term prison sentence still to be given where the court is convinced that that is the best option in the circumstances.

195. Where Committee members do not agree is on how far short-term custodial sentences should continue to be regarded as an appropriate disposal (other than in exceptional circumstances), and on whether they are currently being overused, or inappropriately used.

196. Some members point to the weight of evidence, particularly from academics, suggesting that short sentences involve only “warehousing” of offenders and provide no real opportunity to engage them in programmes to tackle their offending behaviour or address their other problems – and indeed that imprisonment itself may make those problems worse. These members also cite Scotland’s high incarceration rate, and the re-offending statistics, in support of the view that current sentencing policy is not working.

197. However, other members question that evidence, pointing out in particular that, since the people the courts imprison are likely to be the more persistent or serious offenders, it is hardly surprising that their re-offending rates are higher than those given community disposals. These members also cite examples referred to by witnesses, where a short prison sentence has had a salutary effect in persuading an offender to change his or her behaviour, even where previous community disposals had failed to do so. They also question the assumption that short-term sentences are currently given out where better alternatives exist, and hence doubt that a statutory presumption will make any real difference.

198. At least one member of the Committee questions whether, in the context of a provision aimed at discouraging sentencers from imposing short custodial sentences, a six-month threshold is the right one to use. On this view, reducing this to (say) three months, at least initially, would focus the provision on those cases where there is the least chance of rehabilitation in prison and which are least likely to involve serious or violent offences.

Glasgow NE: Gubbed

Some off-piste thoughts on Glasgow North East may be in order this morning. The BBC coverage had its moments – but why, ever so often, did they seem to press the replay button and all the yammering political types would simply reiterate previously furnished statements. I assume that they were operating under the assumption that they might acquire new audience members mid-way through. Hope springs eternal in the newscaster's breast. Nevertheless, despite its relative tedium, I wanted to highlight a few themes which struck me as being of particular interest.

Firstly, racism in Scotland. Tom Devine suggested that the idea of egalitarian Scotland being a welcoming society was mythological. Racism, the historian continued, could not be imagined as another English illness, without Scots symptoms. Here, the supposed egalitarian gloss and its associated good conscience actually conceals the extent to which Scots are prejudicial – and creates a self-image which will be highly resistant to a recognition of that self as racist. We can find this argument in the work of David McCrone in his sociologies of Scotland – arguing that part of what sustains this idea of an egalitarian Scotland is its amenability to different political projects. Historically, leftists could see themselves as the bearers of an egalitarian tradition which rejects social distinctions of class – emphasising a sort of human capital in the face of laxer, more class-conscious English society. Simultaneously, old Tories can take to their tartan-trooed pins on Burns Night and roar out A Man’s A Man for A’ That, confident that the egalitarianism they are expressing relates to merit, and is thus, inherently stratifying in its ends. Its an intriguing question, and Devine’s doubts are familiar. Does thinking you have an equal and welcoming society tend to conceal the hidden transcripts of your society’s wrongs, its cruelties? I can certainly see the case.

Yet also, while such descriptive accounts of the nation may not reflect underlying human experience – there is also an aspirational element to this which we ought not too hastily to squander. Assume, as we must assume, that Devine’s suggestion can be demonstrated – that Scottishness is no vaccine to racism. Its certainly not obvious to me that the answer to that recognition of fallibility is to reject the political discourse which accounts for Scots authenticity in terms of an openness which may not be a sociological universal. Mythologies can be rejected – they can also be lived up to.

The second theme I wanted to return to was the broad commentary on the approach of Labour’s campaign. Said many, localism was emphasised. Ripping off Glasgow its chorus. Labour in opposition to Edinburgh SNP the cheeky undernote. Margo MacDonald deplored this approach to argument, insisting on the importance of collaboration between Scotland’s city states. I’m not so condemnatory. I can see the storied narrative it furnishes Labour with, whether or not I’d agree with the elements of the indictment. What interests me – and it is a subject I’ve posted on before in the context of the defunct airport rail link – is how this apparently politically expedient argument for a Glasgow by-election resonates in the wider community. Part of Labour’s problem, strategically, across the country, is its clotted constituencies in the West Coast, its Glaswegian voice and its representational limitations. Success, for Labour, seems to rely on getting its vote out - not by making alternative appeals outside of their primal, primate-electing constituencies.

From the result, it seems as if Willie Bain could have stodged his way onto the stage with a victorious clutch of votes without this story, re-emphasising that Labour seems as if it is for Glasgow and nowhere else. Ordinarily, of course, I doubt this would matter. The local arguments which by-election candidates make are soon forgotten, their little heresies from the party line to accommodate local sensitivities subsumed under the wider tales of the party’s national fortunes. Why this case is, I’d submit, a little different, is that Bain’s tack is strongly consonant with Labour’s wider, Scottish themes. He contributes to a swelling account of the party, often implicit discourse about the geographic and social divisions in Scotland’s political commitments and presages a return to the drear of hegemonic political Clydesideism in Scotland. This account is, I’d suggest, problematic in the wider constituencies of this country. Precisely because Bain et al. plucked on this string so insistently, and I suspect gratuitously, its interesting to speculate whether, for the sake of grubbing up an extra vote or two, they may actually have sustained a wider account of Labour politics apt to depress their broader electoral fortunes.

Oh, and I'm fed up of hearing about honeymoons and their inevitable (and apparently multiple) endings. Has media creativity died a death? Is there no other metaphor in the whole of bright existence which they could employ to communicate the same process of increasing attention, marginally upped focus and the accumulation of failures or the failures to succeed? No, I feared not...

Glasgow North East By-Election Blues...

I've not really commented recently on the Glasgow North East by-election. Too busy. However, this morning, I was lucky enough to stumble across the following verse-lyric, smuggled to yours truly from the personal scrapbook of an artist, too self-effacing to put his name to the text. I publish it here, merely for your diversion and the enquiring interest of political scientists of remote posterity. Any similarities to the popular poem "Funeral Blues" by Mr Melted-Wellie face (left) is, I'm sure, simply coincidental.

By-Election Blues

A poem written from the perspective of a hypothetical dejected and defeated by-election candidate D----d K—r after Wystan Hugh Auden

Stop all the benefit, cut off the telephone
Prevent the hacks from barking and Bain I might dethrone
Silence my opponents and with muffled drum
Bring out the Lodge, let Orangemen come!

Let the voters circle moaning talking-heads
Scribbling on their ballots the message ‘fuck the neds’,
Push crap prose down the soggy necks of public pigeons,
Hope they don’t say “He ain’t from round here, we don’t like his religion”

There was my Willie, my Ruth, my Bax-an-dale,
My Baillie weak and my Tommy pale
Our drone, our cant, our talk, our song,
I thought this vote would last forever: “Thank God I was wrong”

Your votes are not wanted now, spoil every one;
Hack up my fliers, slump at the end run
Implore no more Glasgow 'cos I’ve now understood
That you gave not a toss which one of us stood.