24 June 2013

The SNP: "prison works"?

Last Friday, the Scottish Government published its new Criminal Justice (Scotland) Bill along with sundry explanatory notes and policy memorandums. The draft legislation will, if passed, bear many of Lord Carloway's recommendations into Scots law. Many of these touch on issues of criminal procedure, of arrest, detention, pre-trial questioning and the like.

Perhaps the most controversial aspect of the Bill is its proposal to abolish the old Scots requirement for corroboration in criminal cases. I've written about this a good deal before, and will come back to the proposals anon. 

Today, I wanted to pick up one of the aspects of the draft legislation, liable to be overlooked in the immediate corroboration hullabaloo. Amongst his other reforms, Kenny MacAskill is proposing to increase the maximum penalty for knife possession from four years, to five.  The government's policy memorandum explains the official thinking.

185. In terms of enforcement, Scottish police are carrying out a considerable number of stop and searches and the courts impose the toughest knife possession sentences in the UK. The table below shows that a person in Scotland is already 50 per cent more likely to be sent to prison than in England and Wales for knife possession and, for those who do receive a custodial sentence, a person’s sentence is likely to be nearly 70 per cent longer ...
192. Within this wider context, the Scottish Government wants to ensure that courts are fully and appropriately empowered to be able to effectively sentence those convicted of knife possession and offensive weapon possession. While sentencing in individual cases is appropriately a matter for the court within the individual circumstances of each case and within the overall legal framework the court operates in, the Scottish Government considers that increasing the maximum penalties for these offences to five years, as proposed in section 70 of the Bill, will reinforce the message to those who might consider carrying knives and offensive weapons that the consequences if caught will be severe. This should help in further deterring the carrying of knives and other offensive weapons as well ensuring that courts do have sufficiently effective sentencing powers to deal with individual cases where the court considers a severe sentence is required.

The figures quoted in the Scottish Government memorandum indicate that only 29% of folk convicted of possession of a sharp instrument or blade in the forth quarter of 2012 received a custodial sentence in England and Wales. This compared to 44% of Scottish offenders, 805 of whom received prison terms for knife-carrying in Scotland in 2011/12.  The prison sentences handed down to these knife-carriers by sheriffs are also stiffer, on average, than their English counterparts.  In England, the average jail term dished out is 199 days. In Scotland, the equivalent figure is 338 days in chokey.

Despite this, the number of folk being sent to jail for possession of pointed, bladed and offensive weapons in Scotland is actually falling.  In addition to pulling offenders up before the beak, the government and police are pursuing other commendable strategies, including the Violence Reduction Unit's almost theatrical "call ins", whose primary tool to dissuade people from carrying knives, interestingly, seems to be emotion. When you have a boy in the dock, and a bleeding body in the street, it is already far, far too late. This is important, creative police work, and Karyn McCluskey cuts an uncharacteristic, and impressive figure. 

All of which set me to wondering. What principles does the SNP bring to its penal policy? What is the government's philosophy of punishment? These latest proposals underline an apparent contradiction in the Nationalists' approach to prison policy during their first and second terms in office.

During the 2011 elections, Scottish Labour wheeled out their knife-crime policy: a mandatory six-month jail term for anybody caught with a shank, scimitar or pruning knife in public, with a residual judicial discretion to spare the convict the clink where exceptional circumstances obtained.  Richard Baker hadn't taken the care to do his sums, hadn't taken into account Scotland's vaulting prison population, our crumbling and overcrowded prison estate, and the parlous state of public finances.  It was thin, focus-group politics, and the party rightly got flayed for their inept distortions and incomplete homework during the election.

For unlicensed firearm possession, we already have a "mandatory" minimum sentence of five years in prison, in the absence of "exceptional circumstances relating to the offence or to the offender".  Back in 2010, we saw the potential injustice of such laws in the case of Gail Cochrane, the Dundee granny who unwisely retained her father's service revolver, and who was sent down for half a decade, before Lord Reed and the Court of Criminal Appeal exercised commendable leniency, to free her.

The SNP position was always more slippery.

Some of you may remember the days when Kenny was championing the idea of a presumption against sentences of less than six months in Holyrood. Compromising, this period was ultimately watered down to a presumption against imposing jail terms of three month or less at the instigation of the Liberal Democrats.  In 2009, the Cabinet Secretary for Justice argued that sentences of less than six months were "ineffective and of no practical benefit to communities".

In reality, of course, those serving short sentences for knife possession (less than four years) will be released early.  In Scotland, after about five and a half months on average: a period of time sitting smack bang in the category of prison sentences Kenny once criticised as expensive and ineffective. For the Scottish Government today, the regular imposition of custodial sentences for an average period of less than six months for knife crime is represented as a Good Thing, their multiplication, to be celebrated. Their message seemingly, in dim echo of Michael Howard, prison works, but only if you lock folk up for a good, long spell.

What to make of this apparent discrepancy? Can knife-possession be distinguished from other categories of crime, and if so how? Why is prison an effective penalty in one instance, but ineffective in all others? To my knowledge, no SNP minister has really attempted to articulate this distinction in any thoroughgoing way.  Conspicuously, the Scottish Government have not used their overall majority in Holyrood to revisit the compromise of their 2010 legislation, bumping up the presumption against three months sentences, to their initially preferred period of six.

At the other end of the spectrum, what to make of the long sentences which Kenny's new knife proposals will make available to criminal courts? Terror is clearly the order of the day, the justification, deterrence.  I find myself wondering, however, possession of what sort of offensive weapon, bladed or pointed, could possibly warrant a five-year prison term? To put that penalty in some sort of context, in the High Court, a man recently received 4 years and 4 months in jail for causing death by dangerous driving.  Another received two years and eight months for assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life.

For the life of me, I struggle to conceive of any weapon which, for possession alone, a four year prison term would not represent a satisfactory (or even, excessively severe) penalty, never mind a half-decade behind bars.  It may be, of course, that these new sentencing powers will never been used, or at least, vanishingly seldom. If so, then why introduce them? I'm afraid a certain whiff of headline-chasing clings to these proposals.

An empirical study conducted by eminent criminologists in 2010 found that many young Scottish knife-carriers "were unclear or incorrect as to the precise legal consequences of knife carrying". I doubt that your average juvenile with a concealed weapon follows Holyrood's legislative procedures, absorbs the pertinent legislation, or knows enough about our criminal courts to alter their behaviour based on the venue chosen by the procurator fiscal. The Lord Advocate's policy directions are unlikely to be bed-time reading.

The Crown Office have announced that those who carry knives in city centres and towns will be prosecuted before a sheriff and jury court, increasing the judge's sentencing powers if the accused is convicted. This, after a six-week pilot over the festive period, during which the number of charges fell by 18% compared to the same period the previous year. The Lord Advocate attributed this reduction to the Crown's new prosecution policy, suggesting that the fall "demonstrated the value in making the tougher action". Colour me skeptical.

"I was going to take that weapon out with me, but now I know that Frank will have me up before a jury, and given my familiarity with the sentencing powers of sheriffs sitting both summarily and solemnly, I think I'll leave my cutlass at home, if it is all the same with you."

Aye right.

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