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 He has been replaced by one James Kelly, of whom I know bugger all.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.