scotland's choice report of the scottish prisons commission

SCOTLAND’SCHOICEREPORT OF THE SCOTTISH PRISONS COMMISSION,JULY 2008

The Scottish Prisons Commission

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RR Donnelley B56186 07/08

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The Scottish Prisons Commission 2008


ISBN: 978-0-7559-5772-9

The Scottish Prisons CommissionSt Andrew’s HouseEdinburghEH1 3DG

Produced for the Scottish Prisons Commission by RR Donnelley B56186 07/08

Published for the Scottish Government by the Scottish Prisons Commission, July 2008


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FOREWORD 1

EXECUTIVE SUMMARY 2

BACKGROUND AND PROCESS 7

WHAT’S THE CHOICE? 9HOWDOWE USE IMPRISONMENT? 11How much are we using it? 11Who are we using it for? 12The social and economic geography of punishment 15

AN OPPORTUNITY FORACTION 17Taking crime seriously 17Engaging the public through informed debate 20Using evidence to inform policy 22

CHALLENGES AND CHANGES 25RETHINKING PUNISHMENT 26PROSECUTIONAND COURT PROCESSES 28Diversion from prosecution 28Court business 28The use of remand 2916 and 17 year olds 29

SENTENCINGAND MANAGING SENTENCES 31Rethinking sentencing 31Community sentences 32Sentencing and the management of sentences 35Short prison sentences 37Conditional sentences 40

COMMUNITY JUSTICE, PRISONSAND RESETTLEMENT 41Reconviction rates 41Community justice and criminal justice social work 43Prisons 45Parole and recall 45

CONTENTS

CUSTODIAL SENTENCES AND WEAPONS (Scotland) ACT 2007 47

THE OPEN PRISON ESTATE 52

Our Future 56

Annexes 59A. Written Evidence 60B. Oral Hearings and Public Events 61C. Highlights of Selected CommissionVisits 62D. Sentencing Options – Current Disposals Available to the Courts 71E. Current Early Release Arrangements 73F. Custodial Sentences andWeapons (Scotland) Act 2007 76G. References 77

The work done by this Commission over the pastnine months has been both detailed anddemanding. It has brought us to what we believe isa crossroads where Scotland must choose whichfuture it wants for its criminal justice system.

Our priority has to be keeping the public safe.Wemust reduce the damage that crime has on victimsand communities. This requires us to responddecisively and effectively when confronted byserious, violent crime. It requires us to use the bestavailable evidence to work harder and be smarter inchallenging and changing offenders and at tacklingthe underlying social and cultural factors that sooften drive their offending and reoffending. Ourcurrent uses of imprisonment are making thisextremely difficult. Scotland’s prisons hold toomany prisoners on short sentences where there isno real expectation of being able to punish,rehabilitate or deter.

If we can step back for just a moment, let us thinkabout what future we want by asking:What mightpunishment in Scotland look like twenty or thirtyyears from now?

Here is one possible future:

� Scotland’s prisons have fewer people in themthan now; they hold only the most seriousoffenders, and those who present the greatestthreat of harm.

� Our prisons are regularly included in lists of thetop international models of safety and security.

� Prison staff regularly and expertly deliver thekinds of programmes that are most effective atproducing change and accountability.

� There is a widely used and well-respectedsystem of community-based sentences, theeffectiveness of which is demonstrated by lowreconviction rates.

� Communities possess high levels of hope andpride from smart investment in services that areboth needed and desired locally.

� Scotland plays regular host to visitors fromaround the world who want to learn from ourachievements.

There is another possible future, one to which ourcurrent path leads. In this future, there are manymore prisons and yet they are just as overcrowdedas the prisons of today. Dedicated and skilledprofessionals lack support and suffer from lowmorale, spending most of their time doing crisismanagement and buried in paperwork. The public’sdistrust of the criminal justice system reachesrecord levels. The most fragile communities areignored and further weakened, ensuring the nextgeneration will find its way into the criminal justicesystem and keep this cycle running.

We have to make a choice between these twofutures. A negative future is not inevitable and apositive one is not unattainable. Both are possible.One requires us to do nothing at all; the other willrequire us to think differently about what we wantpunishment to do and to make some changes inhow we go about achieving this.

In this report we document the path we are currentlytaking and propose a set of solutions aimed atmoving us onto the path we should take. If this is towork, all of us – politicians, the judiciary, the media,professionals, communities, families and individuals– have to embrace the opportunity to change.

Rt. Hon. Henry McLeish, Chair

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ForewordWHICH FUTURE FOR SCOTLAND’S CRIMINAL JUSTICE SYSTEM?

Executive Summary

Scotland faces an important choice with regard tohow it uses imprisonment. Its rapidly growing andovercrowded prisons are making it more difficultto secure public safety and respond effectively toserious crime. Imprisonment can have harmfulconsequences for prisoners and the communitiesto which they return.

The Scottish Prisons Commission was convened totake stock of the problems and develop solutions.The principles guiding its efforts were: punishmentmust be visible, swift and fair; communities shouldbe at the heart of penal reform and action; prisonpopulations must be controlled to achieveScotland’s wider strategic objectives; Scotland canbe an international model.

The Commission’s view was that gaining controlover prison numbers is the necessary first step tolimit its damaging effects and to focus efforts onmore effective punishments.

HowDoWeUse Imprisonment? (p11)In examining how the issue of prison numbersmight be tackled, some striking facts emerged tounderline the scale and complexity of the problemfacing us. This section of the report reveals:

� Scotland imprisons more of its people thanmany other places in Europe.

� The prison population has increased in everyyear of this century; it is projected to reach8,700 inmates by 2016.

� Increased use of prisons is the result of using itfor those who are troubled and troubling ratherthan dangerous.

� Prisons draw their inmates from the leastwell-off communities.

� High prison populations do not reduce crime;they are more likely to create pressures thatdrive reoffending than to reduce it.

AnOpportunity for Action (p17)In seeking how we might make better use ofimprisonment there is no need to reinvent thewheel.We know what works and what doesn’t. Theproblem is not knowledge but action. Re-thinkingour uses of prison provides us with an opportunity to:

� Take crime seriously. Overall, recorded crimerates are slightly lower now than ten years agobut there are important and worrying areas ofincrease, including in some types of violentcrime. Scotland faces real problems withviolence, alcohol and drugs. Current uses ofimprisonment, however, limit the ability to useprison effectively to target the most seriousforms of offending and to tackle the socialproblems that underlie them.

� Engage the public in rational debate. Publicsurveys show that people feel drug and alcoholabuse is a bigger problem than crime is,suggesting openness to a rational debate aboutcrime and punishment. This will require,however, that people are provided withinformation about how and with what effectdifferent forms of punishment work. Greatervisibility of community sentences wouldimprove public awareness.

� Make evidence-informed policy.We alreadyhave good evidence about what works; thechallenge is to implement good practices morebroadly and more effectively coordinate thework of different agencies.

THE CONTEXT

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The Commission’s 23 recommendations represent acomprehensive and inter-dependent set ofproposals which, taken together, offer a systematicand evidence-based response to the challenges thatwe face.

Rethinking Punishment (p26)The evidence that we have reviewed leads us to theconclusion that to use imprisonment wisely is totarget it where it can be most effective – inpunishing serious crime and protecting the public.

1. To target imprisonment better and make itmore effective, the Commission recommendsthat imprisonment should be reserved forpeople whose offences are so serious that noother form of punishment will do and for thosewho pose a threat of serious harm to the public.

2. To move beyond our reliance on imprisonmentas a means of punishing offenders, theCommission recommends that paying back inthe community should become the defaultposition in dealing with less serious offenders.

Prosecution and Court Processes (p28)In seeking to better target the use of imprisonment,it is essential to explore the whole of the criminaljustice process; it is not just a question ofsentencing and punishment; it is also a question ofwho to prosecute and when, and of who needs tobe remanded in custody before trial or sentence.That requires the availability of suitable options atevery stage in the process and it places a premiumon avoiding damaging delays in the court process.

3. To make sure that court business is properlyfocussed only on those cases that need to beformally prosecuted, the Commissionrecommends that the Government extend thetypes and availability of effective alternativesto prosecution coordinated by enhancedcourt-based social work units.

4. To make the court and sentencing process moreefficient, the Commission recommends that theGovernment legislate to place an onus on theCrown to seek to roll-up outstanding matters.‘Rolling-up’ means gathering together all ofan accused person’s outstanding charges, andadjudicating and sentencing them at the sametime.

5. To target more effectively the use of remandcustody, the Commission recommends that theGovernment extend the types and availabilityof bail-related information and supervisionservices across Scotland, including electronicallymonitored bail conditions, operated throughenhanced court-based social work units.

6. Recognising their age and stage of development– and the potential that young offenders may benegatively influenced by older prisoners – theCommission recommends that the Governmentexplore options for detaining 16 and 17 year oldsin secure youth facilities separate from olderoffenders and those under the age of 16.

7. To bring Scotland into line with internationalconventions and to deal more appropriately andeffectively with younger offenders, theCommission recommends that the Governmentre-examine the case for diverting 16 and 17year olds to Specialist Youth Hearings with awider range of options than are presentlyavailable in the Children’s Hearings System.

Sentencing andManaging Sentences (p31)Scotland is a small country but patterns of sentencing– and provision of community sentences – varygreatly. If they are to command public support, bothsentencing and the management of sentences needto be more consistent, transparent and intelligible tothe public. They also need to be effective.

8. To drive forward consistency and improve theeffectiveness of sentencing, the Commissionrecommends that the Government establish anindependent National Sentencing Council (NSC)to develop clear sentencing guidelines that canbe applied nationwide.

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SUMMARY OF RECOMMENDATIONS

9. To lead the implementation of a new CommunitySupervision Sentence (see 11 below), developimproved services for ex-prisoners and driveforward changes in a diverse criminal justicesystem, the Commission recommends theestablishment of a National Community JusticeCouncil (NCJC).

10. To address the need for clearer communicationwith the wider public about sentencing andcommunity sentences, the Commissionrecommends that the National SentencingCouncil and the National Community JusticeCouncil should be jointly charged with enhancingpublic understanding of, and confidence in, thecredibility of both sentencing and themanagement of community sentences. TheNCJC should work with the Scottish PrisonService and the Parole Board for Scotland toenhance public understanding of andconfidence in the credibility of release andresettlement arrangements.

11. The Commission recommends that judges1 shouldbe provided with a wide range of optionsthrough which offenders can payback in thecommunity, but that, where sentences involvingsupervision are imposed, there should be onesingle Community Supervision Sentence (CSS)with a wide range of possible conditions andmeasures. By payback, we mean findingconstructive ways to compensate or repairharms caused by crime. It involves making goodto the victim and/or the community whether byunpaid work, engaging in rehabilitative workthat benefits both victims and the communityby reducing reoffending, or some combination ofthese and other approaches.

12. To enhance clarity and consistency insentencing and to promote a problem-solvingapproach in criminal justice, the Commissionrecommends the development of a 3-stageapproach to sentencing and managingcommunity sentences:

– Stage 1: How much payback?– Stage 2:What kind of payback?– Stage 3: Checking progress and payback.

13. To increase the visibility, credibility andeffectiveness of the new CommunitySupervision Sentence, the Commissionrecommends the establishment of progresscourts that enable swift and regular review ofprogress and compliance with communitysentences – and that deal robustly withoffenders who do not pay back.

14. To reduce the use of short-term prisonsentences, the Commission recommends thatthe Government bring forward legislation torequire a sentencing judge, who wouldotherwise have imposed a sentence of 6 monthsimprisonment or less, to impose a CommunitySupervision Sentence instead, except inparticular circumstances.

15. To provide judges with an additional option insentencing and to keep certain offendersfocussed on reforming, the Commissionrecommends that the Government bringforward legislation to enable a sentencing judgewho has formed the view that a custodialsentence is appropriate, to consider whether itshould be served as a conditional sentence. Aconditional sentence means that the period ofcustody is imposed but suspended subject tothe offender keeping to a strict set ofconditions.

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16. Conditional sentences represent a moreappropriate and transparent use of tagging thanthe current Home Detention Curfew schemewhich is used by prison governors to facilitateearly release. Given that it raises concernsabout clarity and transparency in sentencing,the Commission recommends that, subject tothe full implementation of our otherrecommendations, the current Home DetentionCurfew scheme should be terminated.

Community Justice, Prisons and Resettlement (p41)Resettling prisoners so that they are less likely toreoffend – and less likely to be recalled to custody –is in all of our interests. It is a challenging andcomplex task that requires the cooperation of awide range of agencies and professionals, as well asthe support of the public.

17. To provide dynamic leadership in developing thestatus, visibility, quality, consistency andcredibility of criminal justice social worknationwide, the Commission recommends thatthe National Community Justice Council (NCJC)should be charged with and resourced toundertake these tasks.

18. To ensure progress in developing services thatare available nationwide to address the socialand health related needs of many offenders, theCommission recommends that the Governmentpromote recognition across all Governmentdepartments, all public services, all sectors andall communities of a duty to reintegrate boththose who have paid back in the communityand those who have served their time in prison.

19. To address offending behaviour and theunderlying causes, the Commission recommendsa more restricted and rational use ofimprisonment to enable the Scottish PrisonService to get better at regulating prisons andprisoners, at using accommodation resourcesintelligently to incentivise prisoners to come offand stay off drugs (for example, by providingdrug free wings) and at providing andprioritising rehabilitation.

20. To tackle rising rates of recall to custody ofreleased prisoners, the Commissionrecommends that the Parole Board should beprovided with additional options to bettermanage release and compliance with licenceconditions, including drug treatment and testingservices and extending electronically-monitoredhome detention.

Custodial Sentences andWeapons (Scotland)Act2007 (p47)21. The Commission recommends that, if the Act is

to be implemented, its implementation mustfollow the implementation of this Commission’sother recommendations and the achievementof reductions in the short sentence prisonpopulation. Thereafter, the provisions aroundrisk assessment, conditional release andcompulsory post-release supervisionarrangements should be reserved for thoseserving 2 years or more. Those serving shortersentences should be released under licenceconditions and directed to support services.

TheOpen Prison Estate (p52)22. The Commission recommends that preparing

for release and training for freedom be retainedand reinforced as the proper purposes of theopen estate – not easing overcrowding.We areclear that Scotland will not have a world-leadingprison service and a well-run open estate untilwe reduce the unnecessary, costly, damagingand dangerous overuse of custody.

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Our Future (p56)23. The Commission recommends that the

Government pursue a target of reducing the prisonpopulation to an average daily population of5,000, guiding and supporting the efforts ofrelevant statutory bodies in achieving it. Basedon our analysis of the impact of implementingour recommendations, we calculate that it wouldbe possible to reduce the prison population tothis level by focusing the use of imprisonmenton those who have committed serious crimesand constitute a danger to the public. Our reportand our recommendations are not about savingmoney; they are about investing it wisely andsecuring better outcomes. Though long-termsavings would result from better targeting andlimiting the use of imprisonment, the Governmentand the people of Scotland should be left in nodoubt that we first need up-front investment inbetter services in and for Scotland’s communities.

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BACKGROUNDAND PRocessPart one:

1.1 The Scottish Prisons Commission was convenedin September 2007 to examine Scotland’s use ofprison in the 21st century. Its remit was to:

� Consider how imprisonment is currently used inScotland and how that use fits with theGovernment’s wider strategic objectives.

� Raise the public profile of this issue, providingbetter information to allow a deeperunderstanding of the options, outcomes andcosts.

� Assess the impact for courts, prisons andcommunity justice services of early releaseprovisions of the Custodial Sentences andWeapons (Scotland) Act 2007.

1.2 The Commission spent nine months investigatingthe use of imprisonment in Scotland. In fulfillingour remit we have taken evidence from a number ofpeople and groups (Annex A) and carried out aseries of public events across Scotland (Annex B).

1.3 We prioritised exploring Scottish practice, visitingprisons and places where young people are held;observing local examples of offender management;travelling to community-based projects such as 218in Glasgow and the Falkirk Criminal Justice Services,where extraordinary results are being achieved inordinary ways.We also visited Helsinki, Dublin,Liverpool and NewYork to observe how othersmanage crime and offenders (Annex C).

1.4 Underpinning this review has been ourconsideration of the international body of researchon the use of imprisonment and the causes andconsequences of overcrowded prisons.

1.5 The membership of the Commissionrepresented a range of perspectives and skills:

The Rt. Hon. Henry McLeish (Chair) – former FirstMinister of Scotland, Minister for Enterprise and LifeLong Learning, Minister for Devolution and HomeAffairs

Dr Karin Dotter-Schiller – Acting Director-General, Prison Service in the Federal Ministry ofJustice in Vienna,Austria; founder member,International Corrections and Prisons Association

Sheriff Alistair Duff – Dundee; Chair, Dundeebranch of the Scottish Association for the Studyof Offending

Geraldine Gammell – Director, The Prince’s Trustin Scotland

Richard Jeffrey – President, Edinburgh Chamber ofCommerce; Chair, Edinburgh Tourism Action Group

Lesley Riddoch – broadcaster and journalist

Chief Constable David Strang – Lothian andBorders Police

1.6 Many people took up the opportunity tocontribute to the review. The tight timescale meantthat views had to be invited and offered withinshort deadlines and we are very grateful to all thosewho took the time to share the benefit of theirknowledge and experience.

1.7 The Commission’s work was supported ablyby the Secretariat, and in particular its Secretary,Annette Sharp. The Commission is grateful to herand her team: Iain Harron, Joe Church, Joni Smith,and Laura Piper. The Scottish Centre for Crime andJustice Research provided valuable additionalresearch support. Thanks also to Jim Kerr, ScottishPrison Service, for facilitating prison visits.

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WHAT’STHE CHOICE?Part TWO:

2.1 Scotland’s system of punishment is at a criticaljuncture: our prisons are overcrowded and expanding,reaching new highs in each successive year of the21st century. This carries potentially devastatingconsequences for our communities and our nation.Prisons can increase the likelihood of reoffendingmore often than reduce it; they deepen thealienation of individuals from communities; theydraw resources away from services and institutionsthat benefit all Scotland’s citizens. It is an option tobe used only as a last resort.

2.2 We now face a choice about how and forwhom we will use prison. Scotland need look nofurther than its immediate neighbours to see howothers have addressed prison populations and withwhat result.

� To the south, England is engaged in the mostsignificant expansion of its penal system in UKhistory, where the addition of 30,000 prisonspaces over the past decade has not reducedcrowding.2

� To the north, in Scandinavia, high levels of socialequality and welfare go hand in hand with lowimprisonment rates.

� To the west, in Ireland, a small nation hasemerged to become an economic leader, whileimprisoning offenders at half the rate of the UK.

2.3 Scotland shares features of all these places,having both a strong commitment to social welfareand economic improvement, but it also has highnumbers in prison and some areas of persistentinequality.

2.4 We believe that there is a real opportunity herefor Scotland to choose a distinctively Scottish path,one which builds on local practices and institutionswhile looking to the best practices from abroad thatcan make our approach to punishment moremeaningful, more efficient and more effective.

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2.5 We also believe that what we make of thisopportunity will have consequences for our abilityto fulfil our aspirations in other areas central to ajust and inclusive society, ranging from educationand health, to the environment and the economy.

2.6 This report presents the Commission’s workand includes its recommendations. Our review hasshown us where we are failing, where we are doingwell, and identifies strategies – from around theworld and in our own backyard – for doing better.

2.7 In his speech launching the Commission, CabinetSecretary for Justice Kenny MacAskill established afundamental principle of our deliberations when hestated that, ‘[t]he Government refuses to believethat the Scottish people are inherently bad or thatthere is any genetic reason why we should be lockingup twice as many offenders as Ireland or Norway’.3

2.8 Indeed, it is not inevitable that Scotland shouldhave one of the highest incarceration rates inEurope.4 Scotland can do better. It can do better tosupport the safety and strength of communities.It can do better assuring the public that crime willhave serious consequences. These convictions arebuilt into the Commission’s work and specified interms of several guiding principles.

FIGURE 1: PRINCIPLES GUIDING OURWORK

� Justice requires punishment to be visible,swift and fair.

� Punishment should work to secure publicsafety and support victim recovery.

� Communities can and should be at thecentre of a strategy for working withoffenders.

� We should stabilise and reduce currentprison populations.

� Scotland should aspire to becomerecognised internationally for just andeffective penal practices.

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2.9 Our review shows that we are not using prisonsmainly to tackle serious crime. Many in the currentpopulation are there for very short periods. This isoften to provide communities with short-termrespite. Sometimes this is because we find it moreconvenient to keep an accused in prison before trialbecause he has no fixed abode or finds it difficult tokeep appointments. And sometimes we do notknow what else to do with someone whose drugproblem means they are unable to stick to theconditions of their parole licence or probation order.The problem is that none of these uses makespeople better or communities safer.

2.10 These characteristic uses of our over-crowdedprisons are mainly the result of creeping practices andsystem fragmentation, rather than any change incrime. But in this worrying fact lies also our greatesthope: the means of reducing the costs of imprisonment– to individuals, to communities, and to society –are within our control.

2.11 The Custodial Sentences andWeapons(Scotland) Act was passed last year in an attempt toimprove practice and create more accountability inoffenders and the criminal justice system.We haveexamined as part of our review whether implementingit in its current form would achieve these aims, andif not, how best to do so.We were also latterly askedto review the use of the Scottish Prison ServiceOpen Estate.We present our coverage of these twoissues in the last two sections of the report.

2.12 Our work has shown us that we have aunique opportunity to build a stronger and fairersystem of punishment.We sensed a willingnessamong politicians and professionals, the public andthe media to engage in discussing the reform ofpunishment in a way that transcends the culture ofblame that has characterised earlier efforts. Arational public debate will strengthen our ability totake responsibility for our own failures and toimplement a more successful approach.

HOWDOWE USE IMPRISONMENT?

Howmuch are we using it?2.13 Scotland imprisons more of its populationtoday than it has since records of the imprisonmentrate began. In 2006/07, there were 141 prisoners forevery 100,000 people in Scotland. Less than tenyears ago that figure was 118.

2.14 The Scottish imprisonment rate is near thetop of European league tables for prison use. Itshould be of concern that Scotland’s imprisonmentrates are more similar to recent EU members andformer Eastern-bloc nations such as Romania (176per 100,000), Slovakia (158) and Bulgaria (148),than to members of the EU pre-2004 (Table 1).

TABLE 1: IMPRISONMENT RATES FOR SELECTED EUAND OTHER COUNTRIES IN 2005 OR 20065

(Per 100,000 total population)

Luxembourg 167Spain 144England &Wales 144Scotland 141Netherlands 128Portugal 122Austria 105Germany 93Belgium 91Greece 86France 85Northern Ireland 84Sweden 82Switzerland 79Finland 75Ireland (Eire) 72Denmark 70Italy 67Norway 66

New Zealand 183Australia 125Canada 107USA 754

2.15 The prison population has grown by morethan 20% since the start of the 21st century,increasing from an average daily population of5,833 in 2000/01 to 7,183 in 2006/07. This growthhas been unrelenting: while in the 1990s there weresome decreases in the prison population, this centuryhas seen the population rising inexorably year onyear. The Government estimates that with nochanges in current practices, the prison populationwill grow steadily to 8,700 in less than ten years(2016/17). It has already peaked at over 8,000 on anumber of occasions.

Who arewe using it for?2.16 This increase in Scotland’s prison populationis being driven by increased incarceration of women,those on remand, those serving short sentences andprisoners recalled for violating the terms of their

parole licence (Table 2). Between 1997/98 and2006/07, females in prison have increased by 90%and remand prisoners by nearly 70%.Astonishingly,the number of people recalled on licences has soaredby nearly 1,000% (and the recall rate for youngpeople is double this). Not only have these groups,with the exception of short-term prisoners(discussed below), grown faster than the overallpopulation, they have grown much faster comparedto the overall increase.

2.17 The Audit Scotland (2008) review of theprison population noted that the only category ofprisoner not driving prison growth is long-termprisoners. They made up less of the average dailypopulation of the prison population in 2006/07than they did nine years earlier.

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CATEGORY 1997/98 2006/07 % CHANGE

Male 5,874 6,830 +16

Female 186 353 +90

Adults 5,016 6,176 +23

Young offenders 1,041 1,006 -3

Remand 927 1,567 +69

Sentenced 5,130 5,615 +10

• Recalled 51 519 +918

• Short-term 2,694 2,731 +1

• Long-term 2,367 2,366 –

Total prison pop. 6,059 7,183 +19

TABLE 2: CHANGES IN POPULATION OF DIFFERENT CATEGORIES OF PRISONER (1997/98 TO 2006/07)6

(Groups where growth exceeds average are highlighted)

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2.18 What the table does not bring out is thesignificant growth in prisoners serving very shortsentences, such as those for 6 months or less. Theimpact and significance of such short sentences forthe prison population cannot be fully grasped bytaking a snapshot of the prison population on anygiven day (which is what the average dailypopulation measures and is shown in Table 2).7 Thepicture is clearer if one looks at how much of theannual turnover of a prison is accounted for bythose serving very short sentences. Figure 2 showschanges in receptions of prisoners sentenced to lessthan 90 days; in 2006/07 while there was anabsolute decline in the numbers of prisonersdirectly sentenced to prison, the proportion ofthose going into prison to serve these very shortsentences increased by more than 35%.

FIGURE 2: CHANGE IN RECEPTIONS OF PRISONERSSERVINGVERY SHORT SENTENCES(1997/98 TO 2006/07)8

2.19 It is the view of the Commission that prisonshould be used for those whose crimes are serious andviolent, and for those who present a real risk to oursafety. And yet this breakdown of data shows weuse prison for a very different purpose. Instead ofinvesting in a system that can secure stronger, safercommunities, a series of problematic and largelyunnecessary uses of prison are revealed:

The remand problem – people not yetconvicted of any crime or awaitingsentence: More people went to prison in2006/07 to await a trial or sentence (23,181)than to be punished (20,403). Too often thereason people are detained in this way isbecause of a practical concern about ensuringattendance at court or the need to completepaperwork to support a sentencing decision.9

The short sentences problem – people whoare more troubling than dangerous: Eighty-three percent of prison sentences in 2005/06were for 6 months or less (and 57% of all prisonsentences were for 90 days or less).10 More thana third of the people receiving custodialsentences of 6 months or less in 2005/06received them for miscellaneous offencesincluding common assault, breach of the peace,drunkenness, and breach of a court order.

The warehousing problem – a place to holdthe damaged and traumatised: Ninetypercent of women in prison have drug andalcohol problems, and 75% have a history ofabuse and major health problems.11 The picturefor male offenders and young people is similar.

The compliance problem – people who havebroken rules rather than committed newoffences: The fastest growing prisoner groupcomprises those who have been recalled toprison for having failed to follow the rules oftheir parole, electronic tagging, or early release(a 258% increase since the start of themillennium, and nearly 1,000% higher than nineyears ago).12

-50%

0.0%

5.0%

10.0%

15.0%

20.0%

25.0%

30.0%

35.0%

40.0%

Sentenced to less than 90 days All sentenced prisoner

The youth detention problem – those whofall outside the Children’s Hearing System:Not only does Scotland allow for children to becriminally prosecuted at a younger age thananywhere else in Europe, the Scottish prisonsystem holds over 200 under-18s in prison,which is 40% of the number held in Italy, acountry ten times larger than Scotland.13

The life-by-instalments problem – chronicreimprisonment of offenders: For thousandsof offenders receiving custodial sentences in agiven year it will be only the latest of manyspells in prison. Nearly half of offendersreceiving custodial sentences in 2006/07 hadalready been to prison three or more times;nearly one in six had been to prison more thanten times.14 More than two-thirds of offendersare reconvicted within two years of a custodialsentence.

The revolving door problem – failure to dealwith all outstanding charges: Just under aquarter of offenders who were reconvictedwithin 2 years were reconvicted for offencescommitted prior to their index conviction.15

2.20 While overall recorded crime in Scotland hasbeen on a downward trend, we see prisons aroundScotland reaching record levels of overcrowding.The uses of imprisonment we have described partlyexplain why Scottish prison populations are movingin an opposite direction from crime. High recall rates,high use of remand, and the use of prison to tacklethose with mental health and substance abuseissues mean prison is being used to deal with ourown failures – in the criminal justice, social welfareand health systems.

2.21 It also means that there are fewer resourcesand less space to deal with serious offenders inneed of treatment and punishment. Building moreprisons, without taking action on its excessive usein the areas we have described, would significantlyincrease the financial and social cost of prison withoutimproving its capacity to have an impact on reducingthe reoffending of the most serious offenders.

FIGURE 3: HOW DOWE MEASURE IMPRISONMENT’SRETURN ON INVESTMENT?

Can we get more from what we are spending onimprisonment? The Scottish Prison Service had anet operating cost in 2006/07 of £280 million.It estimates that the annual cost of housing asingle prisoner ranges from £31,000 to £40,000.16

We want our prisons to hold dangerous andserious offenders safely and securely, and tosupport their ability to lead law abiding liveswhen they are released. Only about one-third ofprisoners manage to avoid reconviction fortwo years after being released. Does this level ofsuccess justify the level of investment or arethere other options where we would be morewise to invest?

� If the average number of people held inprison were reduced by even 500, this wouldrepresent a notional annual saving to thetaxpayer of £15 million to £20 million.Conversely, increasing the prison systemby 700 places will cost an additional£21.7 million to £28 million annually tooperate.

� The notional savings resulting from reducingthe prison population by 700 would forexample, be enough to fund a nationalroll-out of an internationally recognisedinitiative to wipe out illiteracy acrossScotland.17

� Admitting and releasing prisoners entailsignificant costs. The high turnover in theprison population, added £2.5 million inadministrative processing costs in 2006/07compared to 2000/01, for a total administrativeprocessing estimate of £8.8 million.18

� Improving the return on investment requiressustained support of research that can providerobust evidence on the cost implications ofpolicies. A strong evidence-based focus willalso allow for effective planning for futureneeds rather than dealing reactively tomanage current crises.

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2.22 These existing uses of imprisonment are bothextremely expensive and counterproductive. Peopleimprisoned for short periods, whether to await atrial or to serve a brief sentence, cannot be engagedin programmes known to reduce reoffending. Forthis group, an ever growing proportion of the overallpenal population, time in prison has only negativeconsequences. It removes them from access to anyhealthy and supportive social networks in theircommunities. It substitutes in their place a group offellow prisoners with major deficits and anti-socialtendencies. It houses them in the parts of a prisonwhere the architecture and security requirementsdiscourage responsibility and encourage thedependence that arises from being told when toeat, sleep and bathe.We were not surprised todiscover a large body of evidence showing that whensuch people return to their communities, they aremore likely than those on community sentences, tobe reconvicted and reimprisoned.19

2.23 Wemet a number of prisoners in Scottishprisons who had served more of these shortsentences than they could count. In effect, we areexpending on a prison system where offenders dolife by instalments, and communities suffer frompunishments that can offer no rehabilitation.Whileimprisonment will provide respite to a communityfor a short time, it can do very little to break thecycle of offending behaviour. Table 3 illustrates theextent of this phenomenon: more than half ofoffenders given a custodial sentence in 2005/06had already been to prison; and nearly a third of alloffenders had been to prison from three to tentimes. This statistic alone provides stark support forthe argument that short sentences have no impacton offending, and that many offenders areundergoing a lifelong process of institutionalisation.

TABLE 3: NUMBER OF PREVIOUS CUSTODIALSENTENCES OF OFFENDERS GIVENA CUSTODIALSENTENCE IN 2006/0720

The social and economic geography of punishment2.24 Recent research on the Scottish prisonpopulation reveals that the reach of imprisonment ismuch more evident in communities that are alreadyexperiencing multiple forms of disadvantage anddeprivation. Former prison governor and criminologyprofessor Roger Houchin discovered that half of thepopulation in Scottish prisons on the night of 30thJune 2003 came from home addresses in just 155of the 1222 local government wards in Scotland;that although the overall imprisonment rate formen in Scotland at that time was 237 per 100,000,for men from the 27 most deprived wards the ratewas 953 per 100,000; and that about one in nineyoung men from the most deprived communitieswould spend time in prison before they were 23.21

2.25 The deprivation of their communities isreflected in prisoners’ backgrounds (Figure 4). Theseverity and pervasiveness of drug and alcoholproblems as well as histories of physical and mentalhealth problems among the prison population isdifficult to over-emphasise. These rates show howprison can act as the catchall for the socialproblems we have failed to deal with elsewhere.Although deprivation should not be accepted as anexcuse for criminal behaviour, there is clearly astrong link between the two.

Previous custodialsentences 2006/07

None 32%

1 or 2 21%

3 to 10 32%

Over 10 15%

16

FIGURE 4: PRISONERS’ BACKGROUNDS22

Compared to the general population, prisoners are:

� 13 times more likely to have been in care as achild

� 10 times more likely to have been a regulartruant from school

� 13 times more likely to be unemployed

� 2.5 times more likely to have a family memberwho has been convicted of a criminal offence

� 6 times more likely to have been a young father

� 15 times more likely to be HIV positive

In respect of their basic skills:

� 8 out of 10 have the writing skills of an 11 yearold

� 65% have the numeracy skills of an 11 year old

� 5 out of 10 have the reading skills of an 11 yearold

� 7 out of 10 have used drugs before coming toprison

� 7 out of 10 have suffered from at least twomental disorders

� 2 out of 10 male prisoners have previouslyattempted suicide

� 37% of women prisoners have attempted suicide

� For younger prisoners aged 18-20 these problems are even more intense; their basic skills, rates ofunemployment and previous levels of school exclusion are a third worse even than those of olderprisoners

2.26 The picture of imprisonment’s disproportionateimpact on the least well off communities inScotland is mirrored in international research.Prisons draw their populations from those areashaving the highest levels of social and economicinequality. There are many neighbourhoods wherealmost everyone knows someone who has been toprison.And in prison inmates continue relationshipsthey had on the outside, where these relationshipssupport sustained criminal activity.

2.27 The regular flow of people going away to andcoming back from prison fragments community lifeand creates a prison like environment for allcommunity residents because of prisons negativeimpacts.We are aware of the impact of crime onvictims and communities. But there is also an impacton the families23 of offenders through increasedchances of losing one’s housing, children going intocare, engaging in further criminal activity, worsephysical and mental health, poor educationalattainment, reliance on public benefits, lowered lifeexpectancy, and entrenching the cycle of crime andimprisonment through the generations.24

17

2.28 We know that many of the ways in which wecurrently use imprisonment are not effective forreducing crime or supporting communities (even forthe limited purpose of providing some respite fromtroublemakers). The challenge now is to makebetter use of imprisonment, and to do this we haveto develop a more robust and effective system ofpunishment that encompasses both prison andcommunity-based sanctions. There is no need tore-invent the wheel in the pursuit of change: weknow what uses of prison work to support reducedreoffending and accountability, and we know howeffective the most well-designed and implementedcommunity programmes are. There is robust andplentiful evidence on these issues. The problem isnot knowledge but action.

Taking crime seriously2.29 The safety of communities requires that wetarget our resources to deal with the most perniciousand harmful acts. The first point of action must beassessing the significance of Scotland’s crimeproblem. This will allow us to focus our resourcesaccordingly.

Recorded Crime in Scotland2.30 Police recorded slightly fewer crimes overallin 2006/07 than they did in 1997/98.30

2.31 Overall figures mask significant increases anddecreases in specific categories of crime, though.There have been some remarkable declines. Recordsof crimes of dishonesty, the category for propertycrime, in 2006/07 declined for the ninth straightyear with decreases for specific crimes as follows:housebreaking (-45%), theft from a lockfast place(-30%), and theft of or from a motor vehicle (-60%).

AN OPPORTUNITY FORACTION

FIGURE 5:WHAT DOES IMPRISONMENT SAYABOUTTHE HEALTH OFA NATION?

Nations that invest the most in prison investthe least in general social welfare.25

‘Higher welfare spending is always linked tolower imprisonment’ and ‘countries whichincreased the percentage of their GDP spent onwelfare saw declines (or lower rate of increases)in their prison population.26

Whenwe fail to invest in childcare, education andearly intervention, we condemn ourselves tospending our money on prisons instead.

A robust and consistent body of researchhas provided strong evidence that politicalfactors have more influence on highimprisonment rates than crime does.27

Imprisonment rates are higher in countries withtwo-party political systems where the parties tryto out-bid one another in terms of tough penalpolicies. The role that themedia play in the debateis important too. Themulti-party system and achanging social and political landscape inScotland since devolution provides an opportunityto escape these damaging dynamics.

Countries with high imprisonment rates maybe reacting less to a real problem of crimethan low levels of trust and high levels ofsocial insecurity.28

The prison problem runs deeper than the penalpolitics and the penal system; it is also aboutrelationships of trust or distrust between ourpolitical leaders, our public servants and ourcommunities.

Scottish prisons are populated by peoplecoming from the least well off communities.29

High imprisonment rates deepen social inequalitiesandmake it more difficult to strengthen thecommunities with themost needs.

18

2.35 Even if we approach these figures with all duescrutiny, we cannot ignore that there is an upwardtrend for some of the most worrying crimes.Homicide, rape and serious assault are acts whichrequire society’s most severe punishment.We muststrengthen our ability to prevent and to punish inthese areas.

2.36 The Commission finds that the current driversof prison overcrowding are severely obstructingefforts to do this, and must be addressed if we areto take serious crime seriously. Overcrowding ofprisons, which is almost entirely occurring in areasholding short term and remand prisoners,32

necessarily strains prison resources and drawsattention, and space, away from dealing with theissues presented by the most serious offenders. Inaddition, a series of short sentences increases therisk of a troubling offender becoming a very seriousone. Tackling serious crime requires significantreduction if not elimination of the use of shortcustodial sentences in order to limit the criminaljustice system’s role in causing this to happen.

2.37 Figure 6 displays the relationship of recordedcrime to prison population over nearly two decades,highlighting a consistent and worrying pattern: nomatter what the crime rate was doing, the prisonpopulation was growing.When crimes increased(e.g. 1990 to 1991), the prison populationincreased; when crimes decreased, the prisonpopulation increased (e.g. 1992 to 1997/98); whencrimes were stable (e.g. 1997/98 to 2004/05), theprison population increased. This provides a strikingillustration to our finding that we are not usingprison in response to crime.

2.32 There have also, however, been increases insome areas of serious crime, although it isimportant to recognise that large percentageincreases mask the fact that serious crimes aremuch smaller in number than other offences.Between 1997/98 and 2006/07, there has been anincrease in recorded numbers of serious assaults(21% increase) and sexual assaults (including anincrease in rapes of 47%). In addition, the policerecorded 22 more homicides (for a total of 118) in2006/07 than they did in 1997/98.The greatestgrowth has occurred in recorded crimes againstpublic justice (94%), fire raising (84%), handlingoffensive weapons (63%), and ‘other’ crimes (63%).Drug crimes also rose (44%).

2.33 If these figures are an accurate reflection ofchanges in crime, then we are doing very well in someareas but must intensify our efforts significantly inother areas, particularly for violent crimes.

2.34 Crime statistics should be viewed through avery careful lens. ‘Recorded’ crime covers crime thatis officially noted by the police, and will both underand over report changes in crime. For example, aconcern about knife violence may lead to prioritytargeting of enforcement of weapons offences,meaning the rate of this crime will go up comparedto earlier periods even if there are no more peoplecarrying knives than previously. Similarly, some crimes,such as domestic abuse and rape are chronicallyunderreported.The rising rate of recorded rapes may,however, reflect more willingness by victims to reportit and better efforts by police and prosecutors insecuring victim trust. Similarly, a crime againstpublic justice is the kind of offence as likely to beaffected by a change in policing priorities as it is bychanges in actual behaviour.31

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FIGURE 6: CHANGES IN RECORDED CRIMES vs.PRISON POPULATION, 1990 TO 2006/0733

Scotland’s Crime Rate in International Perspective2.38 We must face up to the particular and insome ways quite persistent problems of crimefacing Scotland. However, we should not lose sightof the reality that Scotland is a long way from beingan especially dangerous country, and should becareful not to give in to iconic but inaccurateportrayals of the country and its cities asexceptionally ‘hard’. A country that attracted2.6 million visitors from overseas in 2006 andwhere 9% of all employment is in the tourismsector clearly has much to offer the world.

2.39 Table 4 puts Scotland’s experience of crimeinto international perspective. The data comes fromthe UN’s International Crime andVictimisationSurvey (ICVS).Victim surveys are another source ofcrime data and generally capture more crime thanappears in statistics recorded by the police, sincethey include crime that is not reported to the police.34

Table 4 shows Scotland is well down the league tableamong developed countries for the latest availablevictim reports of sexual assault (with 0.6% ofrespondents reporting an experience ofvictimisation), and is only slightly above average forassaults and threats (3.8% reporting victimisation).The ICVS also reports on the rates of victimisationin major cities. City comparisons shows thatEdinburgh (the designated ICVS city for Scotland)reported less sexual assault than NewYork, Helsinki,Copenhagen, Reykjavik, Istanbul, London, Zurich,Belfast, Oslo or Hong Kong.Assault and threat levelswere similar to NewYork, Helsinki, Oslo and Berlin.

300,000

350,000

400,000

450,000

500,000

550,000

600,000

19901991

19921993

19941995

1996

1997/98

1998/99

1999/2000

2000/01

2001/02

2002/03

2003/04

2004/05

2005/06

2006/07

4,000

4,600

6,000

6,600

6,000

6,500

7,000

7,500

Recorded Crimes

Reco

rded

Cri

mes

Prison Population

Pris

onPo

pula

tion

TABLE 4: INTERNATIONAL COMPARISONS OFCRIMINALVICTIMISATION, 2003/0435

2.40 The international picture shows Scotland isnot the worst, nor is it the best, in terms of criminalvictimisation. However, in terms of imprisonmentrates, we are among the worst, and now is the timeto bring our use of resources into line with theactual nature of our problems. Tackling serious,violent crime must be the priority for any societycommitted to the security and safety of its citizens.

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Engaging the public through informed debate2.41 We need public involvement and support in theeffort to make punishment meaningful. There arepromising signs that the public are engaging withthe crime debate in a rational and informed manner.

Public Views about Crime2.42 The Scottish Crime andVictimisation Survey(SCVS) collected the views of thousands of peoplein Scotland about their experiences of and feelingsabout crime and criminal justice.

2.43 The most recent survey, in 2006, shows thatsome misunderstandings about crime persist, butreveals an important shift in how worried peopleare about it. Many believe that crime in their areahas been stable or rising in the past two years,rather than declining as recorded crime statisticsshow, but the overall sense is that the public arevigilant of crime without being cowed byunwarranted fears of it.

Some key findings of the SCVS 2006 are:

� More people felt that drug (76%) and alcohol(65%) abuse are big social problems than feltthis way about crime (56%).36

� Fear of crime is reasonably low in Scotland.Only 3 in 10 people surveyed felt unsafewalking alone at night (and only 1 in 10 feltvery unsafe).

� Most people are not worried about beingvictimised by serious violent crime, nor do theybelieve such crimes are common in Scotland.

� Half of respondents, a larger group than for anyother type of offence, felt drug abuse and drugdealing are common crimes.37

� In terms of victimisation, people worried mostabout having their vehicles vandalised than anyother type of crime.38

Sexual AssaultsCountry Assault & ThreatsIceland 1.4 5.9USA 1.4 4.3Sweden 1.3 3.5Northern Ireland 1.2 6.8England &Wales 0.9 5.8Norway 0.9 2.9Switzerland 0.9 2.5Ireland 0.8 4.9Canada 0.8 3.0Japan 0.8 0.6New Zealand 0.7 4.9Netherlands 0.6 4.3Scotland 0.6 3.8Denmark 0.5 3.3Poland 0.5 3.0Belgium 0.4 3.6Germany 0.4 2.7Greece 0.4 2.4Luxembourg 0.4 2.3Finland 0.4 2.2Austria 0.4 1.8Estonia 0.3 2.7France 0.3 2.1Italy 0.3 0.8Portugal 0.2 0.9Spain 0.1 1.6Hungary 0.0 1.2Australia – 3.8Average 0.6 3.1

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Public Views about Criminal Justice2.44 The data on public attitudes about thecriminal justice system, however, show some signsof scepticism and uncertainty about whether or notthe system works efficiently, either to reduce crimeor produce justice. Slightly more than 60% ofrespondents felt the criminal justice system does notdeal with cases promptly and efficiently.39 Providingthe public with more information and more clarityabout how punishment works would improve notjust the realisation of justice, but its visibility aswell. Some key research findings about publicattitudes towards Scottish criminal justice haveshown that:

� People have generally lenient attitudes towardsfirst time offenders (‘we all makemistakes’), butmore hardened views of repeat offenders (‘formaking amockery of the system’).40

� There is a high level of intolerance of andfrustration with petty crime and anti-socialbehaviour.

2.45 These views help explain why we are usingprison to deal with people whose misconduct isnoxious but not fundamentally dangerous. Althoughuse of community sentences is increasing, failurescan be punished with prison, and may have a higherchance of resulting in imprisonment where a judgefeels an offender’s breach amounts to scoffing atthe rule of law.

2.46 Two issues would significantly improvethe public’s level of knowledge of and faith inpunishment: first, improving the visibility ofthe criminal justice system’s activities andeffectiveness, and second, raising awarenessabout the dynamic process involved in movingtowards a life free of crime.

2.47 As to the first issue, a major barrier to publicunderstanding is the lack of visibility in the criminaljustice system. In a study of Scottish attitudes ofcommunity sanctions, the evidence showed that‘[d]espite the general belief that courts are toolenient and inconsistent, when asked to considerspecific scenarios, respondents’ opinions in terms ofwhich forms of sentencing would be appropriatewere broadly in line with what the court rulingswould be’.41 This suggests that once the public hasdetailed information about the nature of problemsan offender presents and the sanctions that areavailable, they would act as, and presumablyapprove of what, professionals already do.

2.48 The public also is provided little informationabout how effective, and just as important, whatdifferent punishments involve. Communitypunishment is often equated with picking uprubbish or some other activity generally viewed asmarginal to paying back for the harm done ormaking a difference to community life.42 Similarly,there is little awareness of what happens in prisonand the level of sophistication and effectivenessthat the latest programmes now offer.

2.49 The second issue requires broad disseminationof the advances in knowledge we have gained intothe process of desistance, that is, the process bywhich someone gives up crime completely.Desistance rarely happens in a single momentor as the result of one punishment; it is bettercharacterised as a process marked by numeroussmall successes and failures. A single failurepunished with a major sanction can have the effectof tipping a person into a more serious pattern ofoffending. Knowledge of the patterns of offendingand the process of desistance enables the public tosee when and how a community sanction or acustodial sentence is more appropriate. It wouldalso allow court professionals to more effectivelyaddress dealing with wayward behaviour, being in abetter position to distinguish seriously regressivebehaviour from minor missteps.

Using evidence to inform policy2.50 Overcrowding and excessive use ofimprisonment are not taking place because we haveno other options. As use of imprisonment hasincreased in every year of this century, so has use ofcommunity sanctions.We are using all forms ofpunishment more, but we may not always be usingthem to their best effect. This is not due to a lack ofinformation and knowledge. Our effort to makepunishment work better, for offenders and for thecommunities in which they – and we – live, is amplysupported by a large body of research on effectivenessof prison and community punishments. Improvingour performance does not require a revolution inpractice; it calls for a more simple and practicaleffort to enhance the ability of the criminal justicesystem to deploy the best practices that we alreadyknow can work.

2.51 The Commission’s review also provides anopportunity to take forward significant recent workin Scotland that has expanded the evidence base onimproving the system of criminal punishment.These efforts include:

The Sentencing Commission’s Bail andRemand Review (2005), which documentedthe problem of remand populations andprovided specific recommendations for bailsupervision and more notices of court dates;

Reforming and Revitalising – Review of theSystem of Community Penalties (2007),which identified the qualities of the bestcommunity penalties as being high quality,effective, immediate, visible, flexible andrelevant;

Audit Scotland’s Report on Managing PrisonPopulations (2008), which documented thecauses of overcrowding and identified theinability to overcome crowding solely throughnew prison construction.

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Sentences in the Community2.52 In Scotland we already have evidence thatreconviction rates for those on some types ofnon-custodial sentences are lower than for thoseserving a sentence in prison.43We also know thatoffender programmes are better provided in thecommunity than in prison.44 The qualities ofcommunity sanctions identified in Reforming andRevitalising are supported by the research literatureand are found in models of best practice.We foundexamples of best practice in Scotland, and wereparticularly impressed by the Falkirk CriminalJustice Service (see Annex C). This service:

� Arranges the court schedule to allow for aproblem-solving approach – Thursdays are usedto hear all cases that could be appropriate forcommunity service orders.

� Provides an immediate response – once aCommunity Service Order (CSO) is ordered, theperson is given an appointment the same day toappear at a criminal justice office where theconditions of the order are explained to them.They begin the CSO the following Tuesday.

� Has partnered with local educational institutionsand employers to provide relevant activities.

� Has achieved the support of local stakeholdersand is staffed by enthusiastic personnel.

2.53 In developing proposals for change presentedin the next section, we have taken account ofresearch and practice to show how we might movefrom isolated cases of best practice to a nationwidesystem of effective punishment.

Prison Sentences2.54 When does prison work? If prisons are tohave a place in Scotland’s system of justice we needto understand how and when they ‘work’, as well aswhen they do not.

23

PRISONS DO NOTWORK...� To scare people straight. The use of short

sentences to provide a ‘short, sharp shock’ ismore likely to deepen criminal justiceentanglement than to deter it.45

� Better than community sentences to deter,to punish or to provide reparations to victims.Many offenders would prefer a short prisonsentence as an easier option compared to acommunity sanction.46 Those who have been inprison previously are more likely to preferprison to a community sanction.47

� To reduce recidivism.48 The prison settingitself can be an obstacle to change. Recidivismcan be addressed only when effective forms oftreatment programmes are provided in prison.

� To strengthen communities. In families whereone parent is in prison, other members of thefamily are more likely to engage in criminalactivity, to go to prison, to rely on publicbenefits, to be placed in care, and to experiencehigh levels of emotional distress.

� When they are overcrowded.Crowding forcesprison staff to focus on basic populationmanagement issues and reduces the ability towork productively with offenders.

PRISONS MIGHTWORK...� To support reduced reoffending when proven

effective rehabilitation programmes are madeavailable to all prisoners who have beenadequately assessed to participate in them.49

� When they minimise the disruption tocommunity reintegration of offenders. Asystem of small, local prisons is one way toachieve this.

� To keep offenders away from the public. Thiswould indicate its use where there is strongevidence that an individual presents a threat ofserious harm or where the offences are so graveas to require isolation from the community.

FIGURE 7: CASE STUDIES IN IMPROVINGANDREDUCING USE OF IMPRISONMENT

FinlandFinland moved from having one of the highestrates of imprisonment in Europe in the 1970s tohaving similar rates to other Scandinaviancountries (which have some of the lowest ratesin Europe) by the late 1980s and early 1990s. It isalso considered a model for the operation of itsprisons where prison life is normalised as muchas possible to match life in the community;inmates have jobs and receive wages, may vote,and so on. It achieved reductions in itsimprisonment rate through a range of factorsincluding legislative change, judicial coordinationand cooperation in issuing fewer custodialsentences, and political support (Annex C).

IrelandThe Commission’s visit to Ireland was instructive(Annex C). It has a prison population around3,200. This is less than half the size of Scotland’s,although it has almost a million more people.Some of the key differences with Scotlandinclude a legislative prohibition againstimprisoning anyone under 18; strong judicialsupport for and use of alternatives toimprisonment and community sanctions; andprobation supervision focuses on the keeping ofappointments, reducing the likelihood of breaches.Plans for the construction of a 1,700-bedcampus with housing for men, women andyoung people and a secure mental hospital maycontribute to growth in the imprisonment rate.

24

Western AustraliaThe jurisdiction experienced a 43% increase inits prison population over ten years, had thehighest reconviction rate in Australia, and spentthe most on prison. The rising prison populationwas mainly caused by the use of short custodialsentences.The jurisdiction implemented a packageof reforms designed to improve use of alternativesto custody and community sanctions. The reformanticipated to have the biggest impact on reducedimprisonment is the abolition of custodialsentences for 6 months or less. In the first12 months following implementation of the firstreforms, the Department of Justice reported a13% decrease in the rate of imprisonment.50

25

CHALLENGESAND CHANGESPart THREE:

RETHINKING PUNISHMENT

26

3.1 In this section of the report, we lay out whatwe see as the main challenges that lie behindScotland’s rising prison population and propose anumber of changes to Scotland’s criminal justiceprocesses and practices.We believe that thesechanges would, if implemented, significantly reduceScotland’s prison population by better focusing theuse of imprisonment on those who need to be therein all of our interests, making Scotland a safer andbetter place. The starting point and the touchstonemust be this:

The Commission recommends thatimprisonment should be reserved for peoplewhose offences are so serious that no otherform of punishment will do and for thosewho pose a threat of serious harm51 to thepublic.

3.2 These are the right and proper uses ofimprisonment. Scotland’s problems with violencesignal the need not to use prison more, but to use itbetter and more effectively in pursuit of thesepurposes.

3.3 The use of imprisonment is the result ofdecisions at every stage of the criminal justiceprocess from arrest through prosecution, the courtprocess and, ultimately, sentencing. This last stageof the process – sentencing – is a particularlycomplex task that requires that judges develop notonly legal knowledge but also problem-solvingskills. Judges have to take into account a very widerange of factors in deciding how best to handleeach individual case. In terms of the principles thatguide them in this challenge, they have to somehowbalance the need to send strong messages thatmake clear what is right and wrong and that deterwould-be wrong-doers; the need to make thepunishment fit the crime; the need to repair harmwhen this is possible; the need to rehabilitate theoffender; and the need to protect the public.

3.4 If we are to use prisons properly we need tobreak with the idea that the only realpunishment is prison. Imprisonment is a relativelyrecent invention – one that made sense at a timewhen society needed something to replacetransportation to the colonies. In many respects itis a 19th century strategy that has difficultiestackling 21st century problems.52 It cannot bebeyond our imagination to think of better ways ofimposing punishment, of deterring offenders andothers, of sending messages about right and wrong,of getting people to payback for their crimes, ofrepairing harm and of helping troubled people leadlaw-abiding lives. Some of these approaches canand should involve the offender having to give upsomething they value (their reputation, theirmoney, their privacy, their free time, their freedom),some of them can and should involve the offenderin paying back positively through facing up to whatthey have done, apologising, compensating thevictim, doing unpaid work for the community, orworking hard at tackling the problems behind theiroffending. In some cases, where both victim andoffender are willing, restorative justice practicesmay have an important role to play.

3.5 Given our view that prison places should bereserved for those people whose offences are soserious that no other form of punishment will doand for those individuals who continue to pose asignificant threat of serious harm to the public, itfollows that in all other circumstances:

The Commission recommends that payingback in the community should become thedefault position in dealing with less seriousoffenders.

27

FIGURE 8:AN EXAMPLE OF PROBLEM SOLVING INACTION

� When we visited the Liverpool CommunityJustice Centre, we observed a case whereJudge Fletcher was considering making acommunity sentence but needed moreinformation about the offender'scircumstances before deciding what would bethe best approach to take. He asked theprobation officer in the court to makeenquires there and then and bailed theoffender for 2 hours to allow this to happen.

� During his lunch with the Commissionmembers, Judge Fletcher excused himselfhaving received word that the probationofficer had completed the necessary enquiries.

� Being satisfied with what the probationofficer reported, the Judge was able to makea community sentence that afternoon.

� We were struck by this simple examplebecause, under current Scottish practice, thesame sorts of enquiries often take 3 or 4weeks.With that sort of delay, the offenderhas to be bailed (risking offending on bail andfailure to attend the sentencing hearing) orremanded in custody, driving up the prisonpopulation.

3.6 When issues of seriousness and dangerousnessdo not arise, the focus should be on finding themost appropriate and constructive way to get theoffender to payback to the victim and/or society.In essence, payback means finding constructiveways to compensate or repair harms caused bycrime. It involves making good to the victim and/orthe community. This might be through financialpayment, unpaid work, engaging in rehabilitativework or some combination of these and otherapproaches. Ultimately, one of the best ways foroffenders to pay back is by turning their livesaround. Perhaps surprisingly, offender rehabilitationis often a major concern of crime victims who wantto make sure that no-one else suffers victimisationand who see the offender’s rehabilitation as thesurest way to secure this outcome.53

3.7 Reducing the inappropriate use of custodyand building the credibility and effectiveness ofcommunity-based payback depend on getting betterand smarter at dealing with offenders swiftly andefficiently. This requires the different professionalsand agencies involved to move beyond their silosand to accept shared responsibility for solving theproblem of delivering better and swifter justice foroffenders, victims and communities. This is a keytheme that we develop further below but Figure 8provides a simple example of the kind of approachthat we need.

28

Diversion fromprosecution3.8 In order for procurators fiscal to reach ajudgement that it is in the public interest toprosecute a crime, they must be convinced that noother way of dealing with the crime can be foundthat is fair and appropriate. But the range ofavailable alternative options for procurators fiscal inmany areas is limited to various kinds of warningsand fines. Though the Summary Justice Reforms54

are likely to increase the use of additional options,and though this is a welcome development, only afew areas have dedicated diversion schemes thatcan tackle problems linked tominor offending in aspeedy and productive fashion.

3.9 Procurators fiscal nationwide need a wider rangeof options, including options involving mediationbetween victims and offenders, other forms ofrestorative justice and options that tackle themental health, alcohol and drug related problemsthat often underpin minor offending. They alsoneed up-to-date and accurate information aboutthe services that are available.

The Commission recommends that theGovernment extend the types andavailability of effective alternatives toprosecution coordinated by enhancedcourt-based social work units.

3.10 Making this kind of provision the normnationwide would reduce the level of business in thecourts to those cases that really needed to be dealtwith in court.This would free up the courts to do theirbusiness more swiftly and more effectively; it wouldalso provide a swifter and potentially more effectiveresponse to minor offending where it is linked, forexample, to mental health and addiction problems.It avoids damaging people’s future prospects byburdening them with a criminal conviction for aminor offence.

PROSECUTIONAND COURT PROCESSES

Court business3.11 As we travelled around Scotland visitingprisons we heard time and again from offendershow they believed their sentence would not stopthem from coming back to prison. Surprisingly thiswas not because they planned to commit any newcrimes, but because of old crimes that had yet to bedealt with. Unfortunately, in the current systemwhen a judge sentences an offender on one charge,he or she may not be able to do anything about anyother charges the offender is facing – even if, as isoften the case, he or she knows about them.Thismeans that each charge is processed separately,requiring the offender to come back to courtmultiple times, and to be sentenced multiple times.To an offender, this creates a sense of hopelessness– ‘why bother to cooperate with one sentence whenno matter how well I do, I will be coming straightback?’. It leads to the possibility that an offendercan do well on a community sentence and stillreceive a custodial sentence when coming back tocourt, despite not having committed any newoffences. This presents another example ofirrationality in our process that undermines theeffectiveness of all sentences. It makes no sensethat someone who is working hard and making a goof a community sentence should find that theireffort has been pointless because an old casecatches up with them. It is also extremely costly –and as recent cases have revealed sometimesdangerous – to transport convicted prisoners to andfrom court to face old charges.

3.12 In the information society of the 21st century,it should be possible, at least where guilt is admittedand no trial is necessary, to ‘roll-up’ all the cases thata person is facing so that they can get everythingdealt with at once and get on with facing up towhatever sentence they get.

The Commission recommends that theGovernment legislate to place an onus onthe Crown to seek to roll-up outstandingmatters.

29

3.13 ‘Rolling-up’ means gathering together all of anaccused person’s outstanding charges, adjudicatingand sentencing on all charges at the same time.Wethink that this practice would give offenders morereasons for complying with their sentences. It wouldalso make the business of the courts much moreefficient – requiring fewer sentencing hearings andfewer pre-sentencing reports. It would mean speedierjustice for victims too – though it would be importantto keep victims informed about the process of‘their’ case and how it had been dealt with.

The use of remand3.14 We know that some of the most intenselycrowded parts of the prison system are in areashousing prisoners on remand. This includes thoseawaiting trial and those who have been convicted andare waiting to be sentenced. The size of the remandpopulation is growing faster than the overall prisonpopulation. Remand prisoners have been a steadilyincreasing proportion of all prisoners over the pastdecade. In 1997/98, 15% of the average dailypopulation (ADP) of prison was made up of remandprisoners; last year remand prisoners accounted for22% of the ADP (a total of 1,567 inmates).55

3.15 Of those remanded in custody on 30 June 2006,between 21% to 47% did not end up serving jailsentences.56 If they do not need custodial sentences,then it is hard to understand why they needed to beheld in custody in the first place. Sometimes peopleare remanded in custody because that is the onlysafe thing to do, but often remands are the result oflack of information or lack of services in thecommunity to support people on bail.57 If judges areto avoid these unnecessary and costly remands theywill need nationwide speedy access to informationduring bail hearings, and they need a wider range ofbail options nationwide. These options shouldinclude community-based bail accommodation and,where it is necessary, tags and curfews on offendersin their own homes or in specialist bailaccommodation. In order to reduce the number ofaccused persons failing to attend court, the costs

and benefits of a text-alert scheme remindingaccused persons of court dates should also beexplored.

The Commission recommends that theGovernment extend the types andavailability of bail-related information andsupervision services across Scotland,including electronically monitored bailconditions, operated through enhancedcourt-based social work units.

3.16 We recognise that reoffending on bail is aserious problem. One way to tackle this is to reducethe need to use bail in the first place by proceedingto sentencing when guilt is established rather thandelaying cases for reports (see below).When a delayis absolutely necessary, better bail support andsupervision need to be made available to reducereoffending on bail and to get people back in courtto face sentence.

16 and 17 year olds3.17 The Commission explored the use ofimprisonment in relation to 16 and 17 year olds.Figure 9 shows that Scotland imprisons an unusuallyhigh number of under 18 year olds in comparisonwith European neighbours.At present, when 16 and17 year olds are sentenced to detention, not only aretheir family ties, educational chances and job prospectsdamaged, they are forced to form relationships withand, no doubt, learn from more experiencedoffenders.We know that, whatever their sentence,those aged under 21 are the most likely to bereconvicted; 54% are reconvicted within 2 years –the rates of reconviction for young people that areimprisoned together will be higher still. By contrast,of those aged over 30, only 34% are reconvicted.58

30

The Commission recommends that theGovernment explore options for detaining16 and 17 year olds in secure youth facilitiesseparate from older offenders and thoseunder the age of 16.

3.18 Our remit did not extend to considering indetail the interfaces between the Children’sHearings System and the criminal justice system.However, we note two significant concerns. Firstly,unlike in most other countries, at the age of 16,many young people who commit offences face avery abrupt transition from the Hearings System,where the emphasis is on helping them to developand change, to the adult courts, where theemphasis is on punishing them.The suddenness ofthat transition makes no sense; young peoplejudged not fit to decide what films they can watchor what drinks they can buy are nonetheless heldfully accountable for their actions in adult court.

The Commission recommends that theGovernment re-examine the case fordiverting 16 and 17 year olds to SpecialistYouth Hearings with a wider range ofoptions than are presently available in theChildren’s Hearings System.

3.19 Secondly, Scotland’s age of criminalresponsibility remains at 8 years of age, placingus significantly out of line with our Europeanneighbours and calling into question our compliancewith international conventions and agreements.Wefind that there is no persuasive argument whateverto support the view that an 8 year old child shouldbe held fully accountable for his or her actions in anadult court.

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FIGURE 9: PERCENTAGEOF PRISONERS UNDER 18 BY COUNTRY59

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Rethinking sentencing3.20 We have heard much evidence from Scotland,the UK, Europe and North America which suggeststhat bringing about progressive changes in criminaljustice requires the different professionals in thesystem – including police, prosecutors, judges, socialworkers, prison staff and others – to share acommitment not just to the ideas driving thechange but also to working together to make it areality. It follows that the detailed work on movingtowards the basic position on the use ofimprisonment that we set out above must involveall of the relevant people and professions in thejustice system and must draw on their knowledge,experience and expertise.

3.21 Working out in detail how to make theconstructive changes that we propose touches oncomplex issues about the proper roles of theGovernment, the Parliament and the Judiciary inmaking and interpreting the law. In the currentScottish system, judges decide what to do in individualcases in the context of limited guidance from theCourt of Appeal. There is great merit in judgeshaving wide discretion – not least because thiskeeps politics out of individual sentencing decisions.However, it is possible to let judges have discretionin individual cases without sacrificing consistencyand public accountability. In many other jurisdictions,penal codes are established by legislation or bodiesare set up to provide sentencing guidelines. To driveforward consistency and improve the effectivenessof sentencing:

The Commission recommends that theGovernment establish an independentNational Sentencing Council (NSC) todevelop clear sentencing guidelines thatcan be applied nationwide.

3.22 There is another important reason why weneed a National Sentencing Council. Research hasdemonstrated and defence lawyers are well awarethat similar cases are sentenced very differently indifferent courts – and even by different judges inthe same courts. That is why defence lawyers endup ‘judge-shopping’ to try to get the best outcomefor their clients. This is not just a waste of publicresources – more importantly, it undermines publicconfidence in sentencing. The best way to addressthe problem of disparities in sentencing – whichexists partly because judges get little guidanceabout sentencing and have little information abouthow their peers practice sentencing – is to use theNational Sentencing Council to help to make theprinciples and practice of sentencing moretransparent and explicit. This is not just aboutconsistency across the country; it is also aboutconsistency over time; we have seen an upwarddrift in both the number and the length of custodialsentences in Scotland in recent years.60

3.23 However, in order for judges to sentenceconsistently and appropriately nationwide, our viewis that a new body – a sister-body of the NSC withequivalent status – is required to ensureconsistency in the full range of community paybackoptions across the country. Though the detailedarrangements for providing these options couldvary according to local conditions and needs, nojudge should ever feel forced to send an offenderto prison because a more appropriate communitypayback option was not in place.

SENTENCINGAND MANAGING SENTENCES

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The Commission recommends theestablishment of a National CommunityJustice Council (NCJC) to lead theimplementation of a new CommunitySupervision Sentence, develop improvedservices for ex-prisoners and drive forwardchanges in a diverse criminal justice system(see below).

3.24 The NCJC should involve representatives ofthe Community Justice Authority, criminal justicesocial work managers and other stakeholders.Appointed and charged by, but at arm’s length fromGovernment, the NCJC should provide nationalleadership in two key areas. Firstly, the NCJC wouldlead the implementation of the new CommunitySupervision Sentence (see below) – providing therange of robust and credible payback options that thecourts need. Secondly, the NCJC would drive forwardchange for improved services for ex-prisoners,engaging with the Scottish Prison Service, theParole Board for Scotland, and other stakeholders toensure effective and joined-up working.

3.25 A frequent problem that we noted in ourinquiry was that many of the professionals involvedin sentencing, managing sentences and release andresettlement were at best reluctant and at worstfearful of engaging with the media. Though theremay be good reason for this, in our view the mediacan and should play a key role in contributing topublic debate about these issues. To that end,Scotland urgently requires a much more opendialogue between justice professionals and themedia in which all parties play their respectiveparts responsibly and constructively.

The Commission recommends that theNational Sentencing Council and theNational Community Justice Council shouldbe jointly charged with enhancing publicunderstanding of and confidence in thecredibility of both sentencing and themanagement of community sentences.TheNCJC should work with the Scottish PrisonService and the Parole Board for Scotland toenhance public understanding of andconfidence in the credibility of releaseand throughcare arrangements.

3.26 The Local Crime Community Sentencesscheme61 run by magistrates and probation staff inEngland andWales provides one useful example ofhow professionals can work together withcommunities to develop better understanding ofand support for the justice system.

Community sentences3.27 We heard a lot of evidence about a lack ofpublic understanding of existing community sentences.The public know little about why these sentencesare used, about what they mean for offenders, andabout what they achieve. Indeed, they are only likelyto hear about these types of sentence when theyattract media interest – either because they seemunduly lenient or because an offender reoffends. Thislack of information and lack of clarity does seriousdamage to the credibility not just of communitysentences but of the justice system itself.

3.28 We also heard evidence for and againstcreating additional community sentences. Clearly itmakes sense to distinguish sentences that do notrequire ongoing supervision and management by aqualified social worker (for example, admonitions,fines and compensation orders) from those that do(for example, supervised attendance, probation,community service, drug treatment and testing).Rather than extending the number of availablesentences, our view is that the key challenge is tomake community sentences more meaningful, visibleand immediate in their operation and impact.

33

The Commission recommends that judgesshould be provided with a wide range ofoptions throughwhich offenders can paybackin the community, but that,where sentencesinvolving supervision are imposed, thereshould be one single CommunitySupervision Sentence (CSS) with a widerange of possible conditions and measures.By payback,we mean finding constructiveways to compensate or repair harms causedby crime. It involves making good to thevictim and/or the community whether byunpaid work, engaging in rehabilitativework that benefits both victims and thecommunity by reducing reoffending, orsome combination of these and otherapproaches.

FIGURE 10: PAYING BACK INANDTOTHE COMMUNITY

3.29 Figure 10 summarises in simple terms thecentral role that the Community SupervisionSentence (CSS) can and should play in the proposedframework, and it outlines some of the different kindsof payback that might be involved when supervisionis required.What we refer to as ‘paying back byworking at change’ represents an important optionwhen offenders have significant problems thatunderlie their offending.This type of paying back bymaking progress would be central to the CSS.Withouttackling these problems – and confronting andchallenging offenders’ attitudes and behaviours – theCSS will not be effective in helping offenders tochange. Figure 11 illustrates some of the types ofproblems that underlie offending and therefore someof the range of services that would need to beavailable nationwide to allow the CSS to providerehabilitative opportunities.These problems do notdisappear when someone goes to court or to prison;they wait at the door.Too often, services do not. Ourevidence-gathering leads us to conclude that manymembers of the public understand very well that ifthese problems are not tackled then the chances ofmaking real progress by turning lives around andreducing reoffending are limited or lost.Whenever acommunity sentence is imposed or a prisonerreleased, if we are to maximise the chances of realprogress, then the support needs to be immediateand effective.

FIGURE 11:WORKINGAT CHANGE:REHABILITATION INTHE CSSPRISON

Punishing Serious CrimeProtecting the Public

OTHER PENALTIESPaying Back without

Supervision

ConvictionAdmonition Fines, etc.

THE COMMUNITYSUPERVISION SENTENCEPaying Back in and to the

Community

Paying Back Financially

Paying Back throughRestorative Justice

Paying Back byWorkingat Change

Paying Back throughUnpaidWork

Paying Back throughRestriction of Liberty Attitudes,

Values,Thinking

AlcoholUsePeer

Pressure

FamilyIssues

Mentaland PhysicalHealth HousingOther

Problems

Drugs Use

Work andLeisure

MoneyProblems

Educationand Training

PersonalProblems

Paying Back byWorking at Change

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3.30 In our evidence-gathering visits, we wererepeatedly struck by the fact that making communitysentences work depended on the commitment ofthe different agencies and professionals involved. Italso depended on the professionals and agenciessharing a problem-solving approach to tacklingcrime and doing justice in the community. This is atheme we have already mentioned and to which wereturn below, but Figures 12 and 13 below illustratesome of the key findings from our local andinternational visits.

FIGURE 12:PROBLEM SOLVING PRACTICE IN SCOTLAND

� In Falkirk, local sheriffs, procurators fiscal,police and social workers meet bi-monthly ina Criminal Justice Forum.

� Their cooperation has enabled them toorganise remand (sentencing) courts onThursday mornings – and order offenderssentenced to community penalties to reportto the Criminal Justice SocialWork (CJSW)Office on Thursday afternoons. The court andthe CJSW communicate electronically.

� The single CJSW office hosts communityservice, probation and drug treatment andtesting orders, making it simpler for offendersto cooperate.

� Community service is not just immediate. Itis also useful for offenders; it is organised tohelp them develop skills and qualificationswhile they pay back that can help them outof crime and into work. Connections have beenmade with a local college to facilitate this. CSis useful to communities in and through thework that the offenders do. Proceeds of salesof products from the CS workshop areregularly donated to suitable charities.

� Efforts are made to make the public aware ofcommunity service, for example throughpresentations at community councils andregular open days.

FIGURE 13: PROBLEM SOLVING COURTS

� The Liverpool Community Justice Centreaims to reduce crime and build publicconfidence in the justice system. It combinesthe powers of the courtroom with a range ofon-site community resources to tackle theproblems behind offending.

The on-site problem solving team includesthe Judge, the Crown Prosecution Service, theProbation Service and the Youth OffendingTeam. Other on-site services address drug andalcohol problems, debt and housing issues.Volunteer mentors are available to providepractical support.

The Judge uses regular reviews to check upon and encourage offenders’ progress.

� The Red Hook Justice Centre seeks to solveneighbourhood problems like drugs, crime,domestic violence and landlord-tenantdisputes. A single Judge hears neighbourhoodcases; the goal is to offer a coordinatedapproach to people’s problems.An array ofsanctions and services, including communityrestitution projects, on-site educationalworkshops, drug treatment and mentalhealth counselling are rigorously monitoredto ensure accountability. The courthouseengages local residents in ‘doing justice’ viamediation, Community Service (CS) projectsthat put local volunteers to work and a youthcourt where teenagers resolve actual casesinvolving their peers.

� In NewYork, the Midtown CommunityCourt aims to make justice visible and swift.Community service projects are well-publicisedand offenders start CS within 24 hours ofsentence. Three out of 4 complete theirorders. The use of CS has risen from 29% to69% of cases since the court was established.Neighbourhood crime is down.

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FIGURE 14:THE THREE-STAGE SENTENCINGFRAMEWORK

a. Stage 1: Howmuch payback? The judge usesinformation about the offence and the specificcircumstances of the offence, provided by theprocurator fiscal and the defence agent, tomake a judgement about the level of penaltythat is required. The key principle here is thatthe punishment must never be greater than isproportionate to the offence. Developing moredetailed guidelines for making such judgementsshould be one task for the National SentencingCouncil.

b. Stage 2:What kind of payback? The judgeand a court-based social worker (and in somecases other specialists) discuss how best to solvethe problem of finding the most appropriateand constructive form of sentence to enablethe offender to pay back to the victim and/orsociety. This is a complex task in which thejudge must make the final decision about whichkind of payback makes best sense and aboutany issues of public safety that may arise andhow that might be best managed.

� Bronx Community Solutions seeks to reducereliance on expensive and ineffective short-termjail sentences, and build public confidencethat the system is holding offendersaccountable and offering them the assistancethey need to avoid further criminal conduct.The project is the USA’s largest experimentin problem-solving justice.

Rather than the Midtown or Red Hook set-upswhere they have their own separate communitycourt, Bronx Community Solutions is run fromwithin the Bronx’s actual criminal court.

All judges in the Bronx have a broad set ofsentencing options at their disposal, includingdrug treatment, job training, family servicesand mental health counselling. Offendersundertake community service work in localneighbourhoods. Project staff work withresidents and community groups to createcommunity service options that respond tolocal problems.

Sentencing and themanagement of sentences3.31 The evidence that we reviewed, our visits andour own deliberations have stimulated someinteresting ideas about how we might develop thestructures and practices of making and managingsentences. At present, judges are often vulnerable tounfair criticism because the logic of the sentencingdecision is not always transparent or accessible tothe wider public. To some extent this is a result ofthe complexities of sentencing itself and of thedifferent problems that judges face at each stage ofthe process. However, we believe that both theprocesses and the outcomes of sentencing decisionscould be made more open and accountable.

The Commission recommends thedevelopment of a 3-stage approach tosentencing and managing communitysentences: Stage 1: Howmuch payback?Stage 2:What kind of payback? Stage 3:Checking progress and payback.

STAGE 1:Howmuchpayback?

The judge makes ajudgement aboutthe level of

penalty requiredby the offence –with informationfrom the PF &defence agent

STAGE 2:What kind ofpayback?

The judge makes ajudgement aboutthe best form ofpayback – withinput from the

court-based socialworker and theoffender

STAGE 3:Checking

progress andpayback

The progress courtholds the offenderto account forpaying back –recognisingprogress anddealing withlapses andsetbacks

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c. Stage 3: Checking progress and payback. Thelast stage is concerned with the managementof community supervision sentences. Oncethe community supervision sentence (CSS) isimposed, the process of implementing it mustbe immediate. Offenders should come to courtexpecting to start their sentence there andthen; the offender’s induction to the CSS shouldstart as soon as the sentence is passed –literally immediately. And once the sentence isup and running, the offender must be supportedin paying back and being held accountable forpaying back in whatever way the court hasdecided. To make sure that this happens, we seemerit in a new kind of ‘progress court’. Becauseit would not be practical for all judges to presidein these progress courts, and because there isevidence that the experience of conductingthese reviews requires and develops specialistknowledge and skills in judges,63 our view is thatparticular judges in each area should carry out thisspecialised task. To make a clear link to Stage 2,they should be assisted by the court-basedsocial worker who was involved at that stage.

The Commission recommends theestablishment of progress courts thatenable swift and regular review of progressand compliance with community sentences– and that deal robustly with offenders whodo not payback.

Where there was a dispute about the factsconcerning compliance and/or where penaltiesfor non-compliance were likely to be used, theoffender would be entitled to legal representationand legal aid.

The needs for more immediate information, formore immediate induction to communitysentences and for the court-based social workerto play a key part in the progress court reinforcethe case for significantly enhancing theresourcing of court-based social work units.Their roles in relation to diversion fromprosecution and bail information andsupervision further underline the point.

In many cases better resourced court-basedsocial work units, working day in and day outalongside the judges, would be able to get theinformation that judges need there and then,reducing delays and the need for bail or remand.In other cases, particularly where issues aroundrisk of serious harm arise, it will be necessary forthe case to be adjourned while social workerscarry out more detailed enquiries. But the levelof time it takes to carry out these enquiriesshould reflect the seriousness of the case.

Another key benefit of locating the responsibilityfor assisting the judge with the court-basedsocial work team is that it would free upcommunity-based criminal justice social workersfrom writing reports – enabling them to focus onmaking community supervision sentences work.Comparing 1991 to 1996 with 2002 to 2007, thenumber of reports completed by social workershas almost doubled;62 this means that socialworkers are buried under paperwork instead ofbeing busy helping people sort out theirproblems. It also acts as a brake on thedevelopment of better supervision practice.

Looking beyond the role of the judge and thecourt-based social worker, our view is thatoffenders should be required to engage with thejudge and the court-based social worker at thisstage of the process to underline theirresponsibility to pay back. It is also the casethat some kinds of payback just will not workwithout their agreement. For example, it isneither possible nor ethical to force people tochange. But we are clear that if people refuse topay back for their crimes, they must face theconsequences.

In developing more detailed principles formaking decisions about what forms of paybackwould be most appropriate in particularcircumstances, the National Sentencing Councilwould play the lead role, but it would consultwith the National Community Justice Council(NCJC) in this task.

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An important merit of the progress court is thatit would end the current situation where theprogress of community sentences is invisible toboth judges and communities – and where theyonly hear about community sentences whenthey fail. Our view is that this skewsperceptions and undermines both judicial andpublic confidence. As we have already indicated,other initiatives to make the payback involvedin Community Supervision Sentences morevisible will be required too. The public have aright to know – routinely – how much has beenpaid back and in what ways. This does not andshould not mean stigmatising and shamingoffenders as they go about paying back; to do sowould be counter-productive. But it does andshould mean that much greater effort goes intocommunication with the communities in whichpayback takes place.

There is a great deal of convincing evidence thatthe process of giving up offending is extremelydifficult and complex – especially for persistentoffenders.64 Just as we understand that peoplewho are dependent on drugs (including alcoholand tobacco) often relapse when trying to stop,so we need to better understand that for manyoffenders there will be lapses and setbacks too.It is in all of our interests that the new progresscourts would deal with lapses and setbacks bythe offender as swiftly and effectively aspossible.Where these setbacks raise concernsabout public safety, the progress court will needto take swift and proportionate action. But theywould also have an equally crucial role inencouraging, recognising and supportingprogress. As in the successful specialist drugscourts, the emphasis would be on persevering,where possible, in making community sentenceswork. Again, the National Sentencing Councilwould have a role in developing principles abouthow the progress court should operate, inpartnership with the National CommunityJustice Council.

Short prison sentences3.32 Figures 15 to 17 show respectively: thepercentage of all custodial sentences passed in theScottish courts that were for 6 months or less; thetypes of crime and offences for which shortsentences are given; and how quickly and in whattimescales ex-prisoners who have served differentprison sentences return to custody after havingbeen reconvicted.

FIGURE 15: CUSTODIAL SENTENCES BY SENTENCELENGTH (2006/07)65

Up to 3 months

Over 3 to 6 months

Over 6 to 24 months

2 to 4 years

4 years and over

Life etc

57%26%

11%

3% 3% 0%

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Crimes of dishonesty

Fire-raising, vandalism, etc

Other crimes

Miscellaneous offences

Motor vehicle offences

Non-sexual crimes of violence

Crimes of indecency

31.97%

2.72%

21.01%

36.42%

6.44%1.47% 0.23%

0

10

20

30

40

50

60

70

80

90

100

3 6 9 12 15 18 21 24

Time to return (months)

<3 months 3-<6 months 6 months-<2 years

2-<4 years 4 years+ Life

FIGURE 17: RETURNTO CUSTODYWITHIN 2YEARS BY LENGTH OF SENTENCE67

FIGURE 16:TYPES OF CRIMES AND OFFENCES COMMITTED BY SHORT SENTENCE PRISONERS (2006/07)66

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3.33 What these Figures demonstrate is this. Firstly,83% of all sentences passed in 2005/06 were for6 months or less. Secondly, for the most part, thesesentences are not dealing with very serious crimes;serious crimes of violence or indecency account forless than 2% of short sentences. Thirdly, we havealready noted (above) that almost half of thosereceiving custodial sentences have been in prisonmore than three times before; and that between15% and 22% had been in prisonmore than tentimes before.68 The problem of reconviction bythose serving short term sentences is even moreacute; those released from short sentences arereimprisoned more quickly and in greater numberthan those who serve longer terms.

3.34 Given that the average number of days servedin short sentences (under 6 months) is just 24.2 days,69

it is obvious that prisons can do little or nothing inthat time to reduce the likelihood of offending –but, by breaking positive ties and building negativeones, the very experience of imprisonment can do agreat deal to increase reoffending.

3.35 It could hardly be clearer that short-termimprisonment fails to end criminal careers. So, whileshort sentences may seem to provide welcomerespite, any effect is fleeting and in the medium andlonger term they clearly fail to protect the publicand to safeguard communities. Short sentences arenot a solution to the problem of persistentoffending; they are a cause of it.

3.36 Although our view is that the introduction ofthe Community Supervision Sentence and theapproach to sentencing outlined above could makesignificant contributions to tackling the problem ofshort sentences, these measures in themselves willnot be enough to make paying back in thecommunity the default position. This requireslegislation.

The Commission recommends that theGovernment bring forward legislation torequire a sentencing judge,who wouldotherwise have imposed a sentence of6 months imprisonment or less, to impose aCommunity Supervision Sentence instead,unless he or she is satisfied that a custodialsentence should be imposed having regardto one or more of the followingcircumstances:

a. violent and sexual offences that raisesignificant concerns about serious harm

b. when the offence constitutes a breachof bail conditions

c. when the offender is already subject toa Community Supervision Sentenceand/or has a significant history offailing to comply with communitysupervision or conditional sentences(see below)

d. when the offender is subject to a releaselicence

e. when the offender does not consent torehabilitative elements in a CommunitySupervision Sentence

f. any other sentence of imprisonmentthen being served by the offender.

3.37 If a custodial sentence of 6 months or less isimposed, the judge will require to state whenimposing the sentence the reasons, with referenceto these circumstances, why only a custodialsentence could be imposed.

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3.38 A risk in taking this legislative approach is thatwhere judges currently impose custodial sentencesof less than six months, they will simply imposelonger sentences to make sure that offenders stillgo to prison. This might increase rather than reducethe prison population.Another risk is that CommunitySupervision Sentences might become too heavilyloaded with requirements that increase thelikelihood that they will be breached. Our positionis that these risks can and must be explicitlyacknowledged and addressed through dialogue withjudges and others; the National Sentencing Councilwould need to play a key role in this dialogue.

Conditional sentences3.39 A considerable and compelling body ofinternational evidence70 which is further supportedby our own evidence-gathering, suggests thatprisons are at their best in dealing with longer-termprisoners.Where seriousness and dangerousnessrequire longer prison sentences, these sentencesallow prison staff and prisoners opportunities todevelop relationships, to plan for the sentence, andto create opportunities for the prisoner to tackle hisor her problems and to change.We also heard thateffective risk assessment and risk management takestime and skill; if we want it to be done safely, wecannot expect it to be done quickly. To allow prisonstaff to focus more effectively on longer-termprisoners by providing an additional mechanism toreduce the use of prison sentences, we seeconsiderable merit in the introduction of a newsentence that sits directly between communitysentences and custodial sentences. For these reasons:

The Commission recommends that theGovernment bring forward legislation toenable a sentencing judge who has formedthe view that a custodial sentence isappropriate, to consider whether it shouldbe served as a Conditional Sentence.AConditional Sentence means that the periodof custody is imposed but suspendedsubject to the offender keeping to a strictset of conditions which may include anycombination of:

a. Electronically monitored home detention(‘tagging’).

b. Unpaid work of benefit to the community.

c. Payment of financial penalties.

d. Participation in rehabilitative activities.

e. Other conditions required to reduce risk ofserious harm.

In deciding that a Conditional Sentence shouldnot be imposed and that a custodial sentencemust take immediate effect, the judge mayhave regard to the following circumstances:

a. violent and sexual offences that raisesignificant concerns about serious harm

b. when the offence constitutes a breach ofbail conditions

c. when the offender is already subject to acommunity supervision sentence and/orhas a significant history of failing to complywith community supervision or conditionalsentences

d. when the offender is subject to a releaselicence

e. when the offender does not consent torehabilitative elements in a conditionalsentence

f. any other sentence of imprisonment thenbeing served by the offender.

3.40 Once again, the National Sentencing Councilwould need to play a key role in establishing clearprinciples to be applied to such decisions.

3.41 If the conditions of a conditional sentencewere broken, the progress court may require thesuspended custodial sentence to be served in full,although it should take into account whateverpayback the offender has undertaken in thecommunity up to that point.

41

3.42 There is a risk that the introduction of aConditional Sentence would send a confusingmessage to the wider public, blurring the boundarybetween prison sentences and communitysentences. However, the Commission’s view isthat there is merit in having a sentence that sitsprecisely between a Community SupervisionSentence (as described above) and a prison sentence.In a Conditional Sentence, the threat of prison ismore immediate and more specific than for aCommunity Supervision Sentence; the custodialsentence hangs over the head of the offender whoknows exactly what he or she can expect in termsof prison time if they do not stick to the conditions.All the time that the sentence is running, the prospectof having to finish it in custody remains in place tokeep the offender on track. To this end, offenderssubject to Conditional Sentences would be subjectto regular reviews in the progress court.

3.43 As a sentence imposed by a judge, theConditional Sentence represents a more appropriateand transparent use of electronically monitoredhome detention than its current use by prisongovernors to facilitate early release. Though werecognise that the current Home Detention CurfewScheme (HDC) plays a useful role in reducingovercrowding, it is fundamentally inconsistent withthe clarity and transparency in sentencing that thepublic need – and with the right of judges todetermine sentence.

The Commission recommends that, subjectto the full implementation of our otherrecommendations, the current HomeDetention Curfew scheme should beterminated.

COMMUNITY JUSTICE, PRISONSAND RESETTLEMENT

Reconviction rates3.44 In Scotland in recent years, legitimateconcern has been expressed about the rates ofreconviction of sentenced offenders and this hasaffected public confidence in the effectiveness ofsentencing, of prisons and of criminal justice socialwork services. In recent years, rates of reconvictionfor those sentenced to prison and probation showlittle change, but rates of reconviction forcommunity service have been falling.

3.45 If we look at Scottish rates of reconviction ininternational context, what is surprising is how littlereconviction rates vary across the English-speakingworld, despite very different systems of sentencingand punishment.71 Criminological research suggeststhat there is an obvious reason for this. The mostimportant drivers of offending and reoffending arebeyond the reach of the penal system; somesuggest that recognition of the social and culturalcauses of reoffending makes it unwise to overstatethe role that the penal system can play in reducingreoffending.72 To do so, it is argued, is to risk bringingthe penal system into public disrepute by rampingup and then failing to meet unrealistic expectations.

3.46 Scotland’s well-respectedViolence ReductionUnit has promoted the development of aprevention-focused public health approach toreducing crime, rather than expecting the justicesystem to solve social problems. Moreover, theanalysis of the current use of imprisonment thatthis report has provided makes clear that when thepenal system is used to tackle social problems, weend up with prisons over-flowing with the needy,the troubled and the troubling. Scotland’s enduringand growing problems with the imprisonment ofwomen lend support to these arguments.

FIGURE 18: RECONVICTION RATES IN SCOTLAND73

(Percentage reconvicted within 2 years)

3.47 While we see merit in these arguments, werefuse to allow this to be an excuse for failing to getthe best out of our justice system.We have seenevidence here in Scotland and elsewhere ofexcellent practice and of poor practice in tacklingreoffending. Scottish reconviction rates may reflectdeeper social problems and they may be in line withthose of other countries, but this does not meanthat we should settle for poor outcomes ofimprisonment or community sentences. Put simply,the challenge is to strive continuously to make thebest of Scottish practice the norm nationwide, andto make Scottish practice the best in the world.

3.48 However, systems and practices do need to berooted in realism and in the best available evidenceabout how to tackle reoffending. The evidence tellsus that the reality is that prisoners and offendersunder community supervision very often faceserious and chronic disadvantage and exclusionwhich plays out in many and varied ways; typically,they face serious problems with accommodation,drink, drugs, housing, relationships, money and work– and these problems underlie their offending.74

While it is right to focus on repairing the harms thatcrime causes, it is equally important to tackle the illsthat provoke it. They are not easy problems to solve;it takes time, skill and patience to tackle these kindsof issues. But if joined-up services, intelligent strategiesand effective practices are not in place nationwide,then the chances of offenders reoffending will notbe reduced and that means we all suffer – victims,offenders, families and communities.

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Community justice and criminal justice social work3.49 In an attempt to encourage the developmentof more joined-up services, strategies and practices,in 2005 the Parliament passed the Management ofOffenders (Scotland) Act which set up eightCommunity Justice Authorities (CJAs) and chargedthem with developing plans to reduce reoffendingthrough coordinated efforts involving prisons, policeservices, local authorities, health boards, voluntarysector organisations and others. The Act alsoestablished a National Advisory Body (NAB),chaired by the Cabinet Secretary for Justice, toapprove the local plans. The CJAs and the NAB havebeen in operation for less than two years. Though itis too soon to assess their successes and failures, weremain concerned about the capacity of the CJAs todeliver on reducing reoffending, given their verylimited powers and resources.

3.50 Leaving aside these new organisationalstructures, we have identified a need for renewedvision, visibility and leadership of these services.Community justice and criminal justice social workservices are pivotal to making the reforms proposedabove work; these services need to be credible and toenjoy the confidence and support of Scottish judgesand Scottish communities.This requires the properresourcing of community justice and criminal justicesocial work – not just in financial terms, but in termsof boosting the specialist knowledge and skills of theworkforce, their integration and standing within thecriminal justice system, and their standing and statuswithin local authorities and local communities too.Aswe have already noted, it also requires a fundamentalshift in the duties of the criminal justice social workeraway from report writing and form filling and into thedelivery of real support and robust supervision tooffenders. Rather than being so busy writing reportsthat they cannot effectively supervise the offendersthat the courts and prisons send their way, we need tofind ways to release their key professional skills inhelping troubled and troubling people comply withsupervision and helping them tackle their underlyingproblems.That way, social workers can play their vitalpart centre-stage in a joined-up justice system that ismore immediate,more efficient and more effective.

FIGURE 19: JOINED-UP JUSTICE

The Commission recommends that theNational Community Justice Council (NCJC)should be charged with and resourced toprovide dynamic leadership in developingthe status, visibility, quality, consistencyand credibility of criminal justice socialwork nationwide.

3.51 It is equally clear to us that social workerssupervising community sentences and releasedprisoners cannot tackle offenders’ complex andvaried problems on their own. In particular, wereceived concerning evidence about the need forimprovements in community-based health carealternatives for offenders with mental healthand/or drug and alcohol issues.We were surprisedand disappointed to learn, for example, that around70% of prisoners being released in Scotland do nothave a GP.75 For a long time, these social and healthrelated needs – and the role that their neglect playsin driving the use of imprisonment – have beenrecognised in connection with women offenders.But they are common amongst men who offendtoo. Making support available to ex-prisoners is notjust the job of social workers; it is in society’sinterests that all public services – education,employment, health, housing and so on – play anactive part in helping ex-offenders to lead a law-abidinglife in the community. Communities also need toplay their part in giving people who have servedtheir sentence a fair chance for a fresh start.Without a fair chance, ex-offenders are more likelyto return to their old ‘friends’ and their old ways.

ScottishGovernment

NationalSentencingCouncil

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� TheWise Group’s Routes out of Prisonproject employs ex-offenders and people withexperience of disadvantage as Life Coaches tosupport short-term prisoners just before andafter their release.When released service usersare signposted to other relevant agencies and,if job-ready, also work with employmentconsultants on finding employment ortraining. Initial evaluation findings show thatLife Coaches make connections with a highproportion of prisoners, including those withcomplex needs, and that the most salientaspect of the support for many service usersis the quality of the relationship with theirLife Coach.

� The 218 Project in Glasgow works withwomen offenders to address the root causesof their offending. It offers a person centredprogramme of care, support and developmentdesigned to stop women offending by tacklingthe issues that drive it, including drugs,alcohol, abuse and poverty.

218 works with women at any and everystage in the criminal justice process – atarrest, before prosecution, on bail, oncommunity sentences and during and afterimprisonment.

The service involves a holistic approach thattackles the issues that arise in relation totheir offending behaviour, including astructured programme as well as one-to-oneinterventions.

3.52 The Commission finds that the lack ofprogress in developing services that are availablenationwide to address the social and health relatedneeds of many offenders condemns our prisons todeputising for health and welfare services. That iswasteful and wrong and it has to change. TheCommission further finds that if public services andlocal communities exclude ex-offenders, all of ussuffer because the likelihood of reoffending isincreased. Ultimately, turning lives around is thebest way to protect the public.

The Commission recommends that theGovernment promote recognition acrossall Government departments, all publicservices, all sectors and all communities ofa duty to reintegrate both those who havepaid back in the community and those whohave served their time in prison.

FIGURE 20: PROMISING DEVELOPMENTS IN SCOTLAND

� Sacro’s Community Links Centre (CLC) inEdinburgh works with short-term prisoners toassist their resettlement. Prisoners are visitedin prison shortly before their release so thatthe needs that lie behind their offending canbe assessed. Plans are then developed toaddress these needs. Once released, ex-prisonerscan access a ‘one-stop shop’ in the communitywhere they can access the supports andservices that help them to tackle issuesaround benefits, housing, health andemployability services.

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The Commission recommends a morerestricted and rational use of imprisonmentto enable the Scottish Prison Service to getbetter at regulating prisons and prisoners,at using accommodation resourcesintelligently to incentivise prisoners tocome off and stay off drugs (for example, byproviding drug free wings) and at providingand prioritising rehabilitation.

Parole and recall3.55 We also heard worrying evidence about thenumber of ex-prisoners on release licences beingreturned to prison not because of reoffending butbecause they had not stuck to the other conditionsof their release licences. As Figure 21 (below)indicates, and as we have already noted, recall ratesare rising rapidly while the percentage of prisonersbeing granted parole is falling. Research in othercountries suggests that these changes may be lessto do with managing real risks to the public thanwith those concerned becoming more defensiveand risk-averse for fear of being blamed whenthings go wrong.76 If this is the case in Scotlandthen we should all be concerned – firstly becausepeople may be in prison who do not need to bethere and secondly because this may well damagethem and their prospects for successfully resettlingin the community when they do get out. Onceagain we need to be clear that this harms all of us.

Prisons3.53 We were not asked to explore prison regimesand conditions. Rather, our task was to considerhow imprisonment is used. That said, we did notewith concern some evidence which we receivedabout the manner in which Key PerformanceIndicators and financial incentives and disincentivesin the Scottish Prison Service might contribute toproblems with overcrowding.We were surprised todiscover, for example, that when prisoner numbersexceed the contracted limit for a prison, the prisonreceives £10 per prisoner for every night that theextra numbers are accommodated. Similarly,‘under-occupancy’ means that the prisons ‘lose’£6.50 for every ‘empty bed’. Though we recognisethe reasons behind such financial systems, arguablythey send the wrong message. Likewise, we notethat the contract terms which a previous Executiveagreed with Serco (the private company who runScotland’s only existing private prison) make thecosts of exceeding agreed prisoner numbers at HMPKilmarnock prohibitive. This means that despite thecurrent over-crowding crisis, HMP Kilmarnockcontinues to operate under its capacity.

3.54 We were even more troubled by evidence, notleast from prisoners and ex-prisoners themselves,about the levels of illegal drug misuse and illicit useof mobile phones in prison settings.We are wellaware that similar problems exist in all jurisdictions– and are in large part an inevitable consequence offorcibly co-locating and confining offenders with drugproblems and those involved in the drugs trade.However, we do not accept that these abuses can orshould be tolerated – tacitly or explicitly – and weapplaud those prisons that have made progress inaddressing these issues. Over-crowded prisonsystems too often are forced to settle for keepingpeople securely in custody and maintaining order.

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3.56 We believe that further research is required toexplore issues around decision-making about releasefrom and recall to prison in Scotland. However, we donot need research to convince us that the Parole Boardneeds to work closely and constructively with theScottish Prison Service to ensure that prisoners aregaining access to the necessary offence-relatedprogrammes and with criminal justice social workservices to continuously improve ex-prisonerscompliance with release licences. If, as we have notedabove, offenders on the Community SupervisionSentence will face lapses and setbacks, the same istrue of ex-prisoners.Managing these lapses andsetbacks constructively in the community, when theydo not suggest significant risks of serious harm to thepublic, requires that the Parole Board is granted morepowers andmore options when dealing with people whohave not kept to their licence conditions.This shouldavoid unnecessary recalls to prison, particularly wherethe recall is the result of an offender’s problem withalcohol or drugs.

The Commission recommends that theParole Board should be provided withadditional options to better manage releaseand compliancewith licence conditions,including drug treatment and testingservices and extending electronically-monitored home detention.

FIGURE 21: PERCENTAGE OF PRISONERS RELEASED ON PAROLE AND NUMBER RECALLED TO CUSTODY77

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Custodial Sentences AndWeapons (Scotland) Act 2007Part Four:

Background4.1 The Cabinet Secretary for Justice asked us toconsider the implementation of the CustodialSentences andWeapons (Scotland) Act 2007. The2007 Act, if implemented will significantly alterrelease arrangements that apply to prisonsentences. The existing system (under the Prisonersand Criminal Proceedings (Scotland) Act 1993)determines an offender’s release by length ofsentence, not the risk to the public that he or shemay pose. The system is difficult for the public tounderstand. Political and public debate has not beenhelped by a persistent confusion betweenunsupervised and unconditional release. The currentearly release arrangements are shown in Annex E.It is a misconception that the 1993 Act allowsunconditional release; at present every releasedprisoner remains liable to recall to custody to servethe ‘unexpired’ part of their sentence if theyreoffend before the release licence expires. But, the1993 Act does mean that for those sentenced toless than 4 years, release at the halfway point isautomatic and, in most cases, there is nocompulsory post-release support or supervision.

4.2 So the present situation is that release can beautomatic and unsupervised, or automatic andsupervised, or discretionary and supervised. Thislack of clarity in what sentences and post-release‘conditions’ actually mean undermines thecredibility of the criminal justice system. There isconsensus across all political parties and keystakeholders that the automatic, unsupervised andunsupported release of prisoners should end.

4.3 The Cabinet Secretary set us an objective tocompare the underpinning rationale with currentlaw and practice, including the impact for courts,prisons and community justice services of the earlyrelease provisions of the 2007 Act.

The principles of the 2007 Act are to:

� end the current inflexible system of automaticand sometimes unsupervised releasedetermined by sentence length not risk;

� provide a clearer, more understandable systemthat will increase public confidence, enhancepublic protection and reduce reoffendingthrough end to end management of sentences;

� take account of public safety by targeting risk;

� have victims’ interests at its heart; and

� fulfil society’s expectations for punishment anddeterrence but also give offenders rehabilitativeopportunities.

4.4 The 2007 Act while ending unsupervisedrelease, does not end automatic release. There willstill be automatic release at the three-quarter pointof the sentence if not before and it is importantthat public expectations are not raised. Replacingthe current arrangements with a combinedsentence that includes a specified ‘custody part’ anda specified ‘community part’ may assist in providinga clearer, more understandable system for managingoffenders. The Act does provide greater scope forthe effects of the sentence to be explained and thismay help improve public knowledge andunderstanding of the criminal justice system.However, the Act still permits the sentence that thejudge passes in court to be altered in its effects bydecisions taken by ‘Scottish Ministers’ (meaningofficials in the Scottish Prison Service) or by theParole Board. So, plea-bargaining, reduction insentence for early plea of guilt and release on homedetention curfew continue to muddy the watersand undermine the credibility of the system.

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Evidence4.5 Most of those who gave evidence to us supportedthe principles of the 2007Act but thought there weresignificant problems with some of the measures itcontains. Clarity in sentencing was considered to becrucial in building confidence in the criminal justicesystem and there was overwhelming support for astatutory requirement on judges to explain publiclythe effect of sentences, but the potential for lack ofclarity noted above was widely recognised. Otherconcerns included:

Risk assessment: Under the proposedarrangements in the Act, for every sentence of15 days or more, an assessment will have to bemade of the risk of releasing the offender at thehalf way stage as opposed to keeping him or herin prison for a period up to the three-quartersstage of the sentence, to protect the public. Itwill be highly artificial to have such a process atthe lower end of this sentence range.Almost bydefinition, the risk to the public from someonesentenced to 15 days will be low. The protectionof the public from keeping a person in prison for12 days rather than 8 is negligible. As sentencelength increases, there is some significance inthe extra length of time that might be served inprison under the proposed new arrangements interms of public safety. More worryingly, thetime spent on considering the risks and licencerequirements of very short sentence prisonerswill swamp the system and deflect attentionfrom those prisoners whose risk or harm issignificant. These considerations already takeplace under existing arrangements for sentencesover four years and for certain sex offenders.This is the group where public protection issuesare most significant. Extending thearrangements down to 15 days will not yield aproportionate increase in public safety – andmay jeopardise it by overburdening the systemand distorting its proper focus.

Licence conditions: The proposals in the Actstate that ‘The licence conditions will enableprovision for a variable and flexible package ofmeasures including supervision if required’. Buthow meaningful is a package that can becreated while the prisoner is in custody for aslittle as two weeks and under licence for aslittle as another two? If the answer is that therewill simply be a good behaviour condition forthis level of sentence, it starts to look more andmore like the present system.

Continued detention: It is proposed that if aprisoner serving 15 days is considered anunacceptable risk to the public at the half-waypoint, his or her case will be referred to theParole Board. To consider the case properly,papers will be need to be prepared and sent tothe Board, including a report from the judge.Allthis will take time and would require the Boardto hold an oral hearing at which the prisonerwould be in attendance. The Parole Board’sconsideration, decision-making and provision ofthe written decision will take at least a furthertwo weeks by which time the shorter sentenceswould have ended.While there would be moretime with longer sentences, over 80% ofsentences imposed in a year are for 6 months orless. The right of review by the Parole Boardwould therefore be meaningless in a substantialproportion of cases given the time needed toprocess the case properly and fairly. Recentlypublished expert legal opinion suggests that thismay leave Scottish Ministers open to legalchallenge78 and potentially to claims fordamages.

4.6 These reservations are important. But equally,there is clear evidence that release without supportand, where need be, supervision leads to manyoffenders returning to chaotic lifestyles with nofamily support, home or services. It is therefore nosurprise that reoffending rates are high and thatmany offenders end up serving a life sentence byinstalments.We strongly support end-to-endsentencing and support for all offenders on releasefrom prison.

ImpactPrison population: It was estimated that theAct would, if implemented, increase the prisonpopulation by between 700 and 1100. Theincrease in the prison population since the Actwas introduced – and the increase in thenumber of short-term prisoners suggest thatthese estimates may need to be recalculated.Moreover, if judges use the new power toimpose custodial parts of over 50% to asignificant degree, the increase will be higherstill since this was not allowed for in the initialprojections. This creates the risk of seriousovercrowding or costly investment in newprisons. This will require additional resourceswhich may be diverted to prisons fromelements of the criminal justice system thatmay be more effective in reducing crime; thepolice, expanded drug treatment programmesand the more focussed community supervisionsentences that we have proposed.

Courts: The new arrangements will have aminimum impact on the courts. However, therecould potentially be an increase in the numberof appeals against sentences. Any increase isalmost certain to stem from those offenderswho are given more than the 50% minimumcustody part. There was widespread support forthe courts to make clear in open court the effectof the sentence. Such transparency in sentencing,and what it actually means in practice, shouldbuild public confidence in the system.

Community Justice Services: In relation tothe community, the proposals would see alloffenders (except the few on short sentences ofless than 15 days) being subject to a custodyand community sentence.When the offendermoves to the community part of the sentencehe or she will be subject to licence conditionsand supervised, where necessary, by criminaljustice social work services. The costs to localauthorities would come from the much highernumbers of offenders subject to some form ofcommunity intervention or supervision duringthe community part of the combined sentence.

The monitoring and supervision of all offendersin the community is crucial to reducingreoffending. It is important to re-integrate anoffender back into the community and tocontinue the rehabilitation process after aperiod in custody. There will need to beadequate resources in place to provide thelevels of supervision and support required ifpublic confidence is to be enhanced. In caseswhere the risks of harm to the public are notgreat, support may not need to be provided by aqualified social worker. But low risk of harmprisoners can be at high risk of reoffending (inminor ways). Many will need support andencouragement to keep on the straight andnarrow. Community justice services will need towork creatively with offenders, families,voluntary agencies, other public sector agenciesand communities to work out how best tosupport such offenders.

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Key Findings� Joint working in risk assessment has significant

resource implications and the high number ofshort-term sentences could have theunintended and unfortunate outcome ofdiverting resources from those who requireintensive risk assessment.

� The level of ‘supervision’ required should beproportionate and tailored to the risk of bothharm and of reoffending that each individualoffender presents.

� Prison numbers could increase by between 700and 1100 (that is, 2 new prisons).

� Assessment of the risk of serious harm wouldnot be possible for the majority of offendersspending less than 6 months in custody.Short-term offenders instead need anassessment of needs.

� Situations and circumstances change when anoffender goes back into the community, sosocial work, police and voluntary agencies mustbe resourced to continue assessing andaddressing risk and need.

Recommendations� If the Act is to be implemented, then

consideration should be given to a stagedimplementation prioritising those sentenced to2 years or more (6% of custodial sentences79). Ifand only if more short-term sentences arereplaced with community sentences, then thepractical problems with implementing the Actwill be diminished.

� Those sentenced to less than 2 years (94% ofcustodial sentences80) should be releasedconditionally and with support and supervisionat the halfway point of the sentence.

� Supervision need not always be undertaken byqualified social workers where low levels of riskof harm permit others to take the lead.

� The Act should not be implemented until theresources are in place for joint risk and needsassessment and supervision/support in thecommunity.

Summary Recommendation:4.7 Having reviewed the evidence about the likelyimpact of the Act on the prison population andabout its workability in terms of the effectivemanagement of prisoners in custody and on release,we have some serious concerns about the Act. Inour view, the main problem with the Act is that the14-day lower limit is simply not practicable. TheCommission supports the main principle of the Act;that all released prisoners should be supported inthe community on their release so as to assist intheir resettlement and reduce their offending.Given the Commission’s recommendationsconcerning using community supervision sentencesand conditional sentences.

The Commission recommends that, if theActis to be implemented, its implementationmust follow the implementation of thisCommission’s other recommendations andthe achievement of a reduction in the shortsentence prison population.Thereafter, theprovisions around risk assessment,conditional release and compulsorypost-release supervision arrangementsshould be reserved for those serving 2 yearsor more.Those serving shorter sentencesshould be released under licence condtionsand directed to support services.

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THE OPENPRISON ESTATEPart FIVE:

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5.1 The Cabinet Secretary for Justice also asked usto examine the role of the open prison estate, in thelight of the Robert Foye case. In that case, anoffender absconded from an open prison and rapeda 16-year-old girl.

5.2 We visited Castle Huntly on 14 February 2008and were given a presentation by the thenGovernor, IanWhitehead, and other keyestablishment staff, including those who work atNoranside Prison. The members were also given atour of the establishment and had the opportunityto see the range of services available to offenders.

The role of the open prison estate5.3 In April 2007, Castle Huntly and Noransideprison were integrated into a single establishment,HM Prison Open Estate. The two previouslyindependent sites were merged to provide distinctiveprisoner services and in order that the resourcesused gave best value across both sites. Geographically,Castle Huntly is in Longforgan, 3 miles west ofDundee; whilst Noranside lies 10 miles north eastof Forfar in Angus. Both institutions hold lowsupervision adult male prisoners serving 18 monthsand over, including life sentence prisoners; all ofwhom have been assessed as suitable to serve partof their sentence in open conditions. Dependentupon sentence length, prisoners can spend up to24months in open conditions although the averagelength of stay is 6 to 9 months. Prisoners areprovided with employment training and transitionalthroughcare while working towards a structuredreintegration into society.

5.4 The capacity within the open estate hasincreased since 2006 with the introduction of theExtended Home Leave (EHL) and Continuous CellOccupancy (CCO) schemes. Extended Home Leaveallows selected prisoners up to 7 nights’ access eachmonth to their home community. The currentaccommodation has increased from 425 toapproximately 519 places.

Supervision system5.5 The ‘Prisoner Supervision System’ is the processby which different levels of supervision requirementare allocated to each individual prisoner duringtheir time in either closed or open prisons. Thesupervision levels are High, Medium and Low.Afterinitial allocation of supervision level on admissionprisoners are reviewed annually until they attainlow supervision status. The process is designed tomonitor and support behaviour whilst in prison butis not designed to assess risk of harm to the public.

Criteria for transfer to the open estate5.6 Transfer to the open estate is governed by anumber of formal rules, guidance and otheradministrative arrangements. Long-term and lifesentence prisoners, will have gone through theEnhanced Integrated Case Management process toinform on risk assessment and management. Thereare also qualifying periods for long-term and lifesentence prisoners to access the open estate basedon length of sentence as part of the PrisonerSupervision System. There is no minimum qualifyingperiod for short-term prisoners.

5.7 In all cases, the prisoner must have nooutstanding warrants; have low supervision status;and have no identified high offence-related needswhich cannot be met in the open estate.

Absconds fromprison5.8 Despite the increase in the number of offendersaccessing the open estate, the number of abscondsis reducing. It is also important to remember that ofthose who do abscond, only a small proportion goon to reoffend during the period they are unlawfullyat large. In 2007/08, there were 55 absconds fromthe open prison estate. In the same year theaverage daily population was 487 and the totalnumber of prisoners who went to the open prisonestate was 793.

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Key Findings5.9 We recognise that the prison open estate is anintegral part of the rehabilitation process. However,the open estate is in the community. There areno walls or fences and prisoners have access to boththe local community and to the community theyintend to return to on release.While the SPSacknowledges that managing and minimising risk ofharm to the public is paramount, there can be nodoubt that high prison numbers mean there arepressures to move prisoners through the system toalleviate overcrowding elsewhere in the estate.

5.10 As we have already argued, prisons will alwaysbe needed for serious and dangerous offenders.Allowing long-term prisoners controlled access tothe community is a proven method of assessingtheir suitability for and preparing them for releaseon licence. However, the transfer of an offenderto an open prison must only happen when allcriminal justice agencies are satisfied that hisor her risk can be managed in that setting.Whileit will never be possible to totally eliminate risk,there must be effective joined-up assessmentprocedures and risk management plans in place.

5.11 Our view is that the Scottish Prison Service isnot and cannot be solely responsible for theoffender’s rehabilitation. If it is accepted thatmoving offenders to the open estate is in fact thefirst step in moving them back into the community,then other key agencies need to play a part inmanaging the risk and needs of the offender. Onlyan in-depth review into risk assessment processesand of individual decisions would reveal whether ornot the current risk assessments and checks inplace are adequate.We would, however, make thefollowing observations:

� Access to the open estate should be primarilyfor those serving a life sentence or a long-termdeterminate sentence (of 4 years or more).

� All identified risks and needs must besufficiently addressed through interventionsbefore an offender qualifies for a transfer to theopen estate.

� A comprehensive community risk managementplan, including home background details, shouldbe developed and be in place before an offendertransfers to the open estate.

� The open estate should review the riskassessment and risk management plan as soonas possible after transfer to ensure that triggerbehaviours in respect of escalating risk areidentified and to plan how to address thesebehaviours should they arise.

� There should be a more clear correlationbetween risk of harm/reoffending and theprisoner supervision system. An offendercould be designated ‘low supervision’ in aclosed establishment but require a higherlevel of supervision in the open estate.

� Temporary release licence conditions should linkto the risk management plan and there shouldbe resources in place to monitor response.

� During home leave visits offenders shouldbe subject to licence conditions specific totheir individual risks and needs. These mightinclude requiring them to attend appointmentswith partnership organisations in thecommunity, working with organisations to helpthem access work or training and, whereappropriate, place restrictions.

� Joint arrangements should be agreed withpartnership organisations such as the localauthority criminal justice social work services,the police and other service providers to ensurethat the offender’s risks and needs areaddressed within the open establishment itselfand in the wider community.

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Summary and Conclusion5.12 Though there is no doubt that the ScottishPrison Service made mistakes in its management ofRobert Foye. In many respects his case provides astark and tragic example of why imprisoning toomany people makes the community less safe ratherthan more safe. In recent years, the open estate hasbeen used to ease overcrowding as well as to preparelong-term prisoners for release.81 There is evidencein the SPS internal report on the Robert Foye casethat there were problems in communication andrecord-keeping both within the prison and betweencommunity-based social work services and theprison service (about his home circumstances).82

It appears that the decision-making in this casefocussed too much on Foye’s security classificationand too little on the risk of harm that he posed tothe public. These weaknesses in systems andpractices arose despite the fact that Robert Foyewas a long-term prisoner who had alreadycommitted a serious violent crime, who had alreadyabsconded once from the open estate, who hadfailed a drug test in prison, and in respect of whomthere was intelligence that he had threatened tooffend. In short, he was exactly the kind of prisonerthat we believe that prisons exist to punish, to holdsecurely, to risk assess accurately and to rehabilitateeffectively. Risk assessment and rehabilitation arenot perfect processes: Not all risks are predictableand it is far from easy to rehabilitate seriousoffenders. But in the Robert Foye case, theseprocesses failed – with dreadful consequences.

5.13 However, given the overarching purpose of ourwork, it is crucial to note that the context of theFoye case was that the prison service resourceswere stretched to the limit by over-crowding.To allow this situation to continue is to compelthe Scottish Prison Service to divert time andenergy away from detaining and rehabilitatingserious offenders to dealing with the troubledand the damaged.

5.14 Scotland needs a prison service that is world-leading in detaining serious offenders and helpingthem to change. Scotland also needs a well-runopen estate because it is not in the public interestto release long-term prisoners from closedinstitutions without preparing them for release andtraining them for freedom. Our view is that prisonpopulation pressures have distorted the properfunction of the open estate.

The Commission recommends thatpreparing for release and training forfreedom be retained and reinforced as theproper purposes of the open estate – noteasing overcrowding.We are clear thatScotland will not have a world-leadingprison service and a well-run open estateuntil we reduce the unnecessary, costly,damaging and dangerous overuse ofcustody.

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OURFUTUREPart SIX:

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6.1 Our current uses of imprisonment are notworking. The reliance on prison to hold people forshort periods only increases the chances of themcoming back, again and again. In 2006/07, nearly7,000 offenders who received a custodialsentence had already accumulated between them47,500 prior spells in prison.83 Nearly one in sixof these offenders had already been to prison onmore than ten previous occasions.What is this use ofimprisonment accomplishing: rehabilitation,punishment, deterrence?

6.2 The answer is none of these things. Prison isnot making these people better or more sorryabout what they have done, and while we continuein these efforts we are only diverting resourcesfrom other areas essential to the health of society.Money invested in prisons could be better spent incommunities and on nurseries, schools, youthservices and hospitals. In the longer term, theseinstitutions stand a better chance of reducing crimethan prisons do.

6.3 The Commission has been determined to baseits recommendations on the best available evidenceon the most effective ways to bring about theoutcomes we all desire.We know from the researchthat there is only so much we can do within thecriminal justice system to improve the situation. Oneof the most significant findings to emerge from theevidence base tells us that when our justice agenciesdo not work together, then minor instances ofineffective practice snowball into major problemswith substantial negative impacts on individuals,communities and prison populations. To make thiswork there will need to be a continuing programmeof education and professional development for allthose who constitute the criminal justice system.

6.4 The proposals that we have presented in thisreport are aimed at improving the immediacy,appropriateness and effectiveness of punishment.Their implementation will enable the allocation ofresources where they are most needed and mostlikely to make a difference. Based on our analysis

of the impact of implementing therecommendations, we calculate that it wouldbe possible to reduce the prison population byas many as three to four thousand offenderswho have not committed serious crimes and donot constitute a danger to the public. Thisreduction could not be achieved immediately butwould begin to occur once recommendations areimplemented. Those that need to be in prisonshould continue to go to prison. This is not aboutsaving money. It is about investing it wisely andsecuring better outcomes. Though long-termsavings would result from removing those whopresent no significant threat to public safety fromthe prison population, the Government and thepeople of Scotland should be left in no doubt thatwe first need up-front investment in better servicesin and for Scotland’s communities. That is what ourcommunities need if we are to take crime andpunishment seriously.

The Commission recommends that theGovernment pursue a target of reducing theprison population to an average dailypopulation of 5,000, guiding and supportingthe efforts of relevant statutory bodies inachieving it.

6.5 These improvements, which we believe wouldsubstantially improve our response to crime, canonly take us so far towards the future we envisionfor Scotland. Our high prison populations need tobe addressed in themselves, but they aresymptomatic of far deeper problems beyond thereach of this Commission’s remit. Even with themost effective use of prison, we will not be freefrom its harms unless we make progress in theseareas. These include:

6.6 Drugs, alcohol and health:We have notedthroughout that the problem of drug and alcoholmisuse that afflicts this country is disproportionatelyreflected in prison populations. Men, women andyoung people in prison all have significantly higherrates of drug and alcohol problems, and higher rates

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of physical and mental health problems than thegeneral population. Prisons will continue to act as adumping ground until we develop more sustainableapproaches to tackling our drug and alcohol problemsthrough health and education services, and throughsupporting action in communities and families.

6.7 Violence:Violence has profound and longlasting consequences for individual victims, for thecommunities in which it takes place and for society.Securing the safety of its citizens is one of the firstand foremost purposes of the state. Prison has acentral role to play, but it can too easily worsen theproblem when used too quickly for minor offending.Adequate punishment of violent offending is anecessary element of a violence strategy but onewhich, on its own, can have at best a very limitedimpact on offending. The deeper problem lies in ourculture and history. Criminal justice practitionersalready understand this and some have embracedmore holistic and joined up efforts to developeffective strategies. The Strathclyde Police’sViolence Reduction Unit provides an excellentexample of this. Their adoption of a public healthperspective allows for better coordination ofpreventive and enforcement activities.

6.8 Respect in the community:Communitiesresent high levels of disrespectful and disturbingbehaviour but too often feel abandoned and leftwith no choice but to accept it.Vandalism, litteringand anti-social behaviour are too common in toomany areas, but they should not be tolerated. Theseeds of serious offending are planted inenvironments that are chronically neglected, andwhere low level problems are accepted as normal.We are right to be angry and to demand action onthese issues.Where communities are proud ofthemselves and of their surroundings they are morelikely to feel safe, respected and informed.Wherethey feel well supported by public services andreassured about how crime is being tackled, theyare more tolerant and more willing to let peoplepay back, make good and get on with their lives.

6.9 Families and responsibilities: Families have akey role to play too.We all understand that parentsand other care-givers play the largest part inhelping their children grow up with a proper senseof right and wrong and with respect for themselvesand for others. But for all sorts of reasons, even thebest parents and care-givers struggle at times andneed support.We need to make sure that suchsupport is available and that it builds on people’sstrengths and releases their potential and thepotential of their children. That is one of the bestways to invest in a safer Scotland.

6.10 Connecting research to policy: Making apositive difference in these areas as a societyrequires a research base which addresses the keyanalytical issues.While the Government and itsagencies produce an extensive amount ofdescriptive information, there is a need for morereflective, analytical and longitudinal work thathelps us understand the importance of thesestatistics and the impacts of our practices. On somequestions we have deep knowledge, while for otherswe are surprisingly bereft of data and analysis.There has been recent investment in developingacademic and independent research withinScotland, and such efforts should be continued andevolved to support better policy and improve theability of isolated agencies to work together as asystem towards common goals.

6.11 In this report we have attempted to map outa pathway to the positive future that we wantrather than a bleak future that is forced upon usbecause of our failures to act decisively in relationto our use of imprisonment. In 20 or 30 years’ time,future generations might look back upon this as themoment when Scottish politicians, professionals,journalists and people made difficult, brave andbold decisions – based on evidence and analysisrather than hysteria and sentiment – that to useprisons most wisely is to use them sparingly; andthat imprisonment is only one part of the answer toour crime problems.

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annexes

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A.WRITTEN EVIDENCE

� Women in the Criminal Justice System, reportby the Joint Faiths Advisory Board on CriminalJustice

� Alternatives to Custody, paper by the JointFaiths Advisory Board on Criminal Justice

� RSEWorking Group Submission to the ScottishPrisons Commission, Royal Society of Edinburgh

� ‘Alternatives to Prison – report of a conferenceorganised by Encounter and the Royal Society ofEdinburgh’

� Letter from Prof. Sheila Bird, Medical ResearchCouncil,Vice President, Royal Statistical Societyto Chair Prisons Commission, re misuse ofstatistics, etc.

� ‘Evidence to the Scottish Prisons Commissionfrom theVisiting Committee for Polmont YoungOffenders Institution’

� ‘Recovery and Change from OffendingBehaviour using a Recovery Management Modelunder a Recovery Oriented Systems of Care’,submission from Fraser Ross of Smart Recovery

� ‘Rethinking Imprisonment in Scotland: TheDilemma for Prison Reform and the ChallengeBeyond’Alec Spencer, submission to theScottish Prisons Commission

� ‘Crime & Justice in Scotland 2005/06,A secondReview of Progress’ Scottish Consortium onCrime and Criminal Justice

� ‘Women in Prison in Scotland,An UnmetCommitment’ Briefing Paper, ScottishConsortium on Crime and Criminal Justice

� ‘The Cost of Unnecessary Imprisonment’Scottish Consortium on Crime and CriminalJustice

� Correspondence from CorntonVale Over 21sVisiting Committee to Kenny MacAskill andCathy Jamieson re. women prisoners

� ‘Not Seen. Not Heard. Not Guilty. The Rightsand Status of the Children of Prisoners inScotland’, Scotland's Commissioner for Childrenand Young People, Report,Young Person’sversion

� ‘Faith in Throughcare in Scotland’s EconomicallyPoorest Communities’

� Note onWomen in Prison for the ScottishPrisons Commission, from the ScottishConsortium on Crime and Criminal Justice

� Note on Custodial Sentences andWeapons(Scotland) Act 2007 from the ScottishConsortium on Crime and Criminal Justice

� ‘Risk Management and Public Safety’, RiskManagement Authority

Oral hearings

24/1/08 Evidence Session 1� COSLA (Convention of Scottish Local

Authorities)

� Lothian and Borders CJA (Community JusticeAuthority)

� SACRO (Safeguarding Communities, ReducingOffending)

31/1/08 Evidence Session 2� SPS (Scottish Prison Service)

� Parole Board for Scotland

� Scottish Prison Officers Association

� Victim Support Group Scotland

5/2/08 Evidence Session 3� ACPOS (Association of Chief Police Officers)

� HM Chief Inspector of Prisons

� SCCCJ (Scottish Consortium on Crime andCriminal Justice)

� Families Outside

� ADSW (Association of Directors of SocialWork)

26/2/08 Evidence Session 4� Conservative Justice spokesperson: Bill Aitken

� Labour Justice spokesperson: Pauline McNeill

� Liberal Democrat Justice spokesperson:Margaret Smith

1/5/08 Evidence Session 5� RMA (Risk Management Authority)

� PGA (Prison Governors' Association)

� Women’s Aid

List of public events

1. Marryat Hall, Dundee, 19 May

2. Netherbow Theatre, High Street, Edinburgh20 May

3. Mitchell Library, North Street, Glasgow, 27 May

4. King’s College, Old Aberdeen, 28 May

5. Town House, Inverness, 29 May

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B. ORAL HEARINGSAND PUBLIC EVENTS

Liverpool Community Justice CentreThe Commission visited the Liverpool CommunityJustice Centre on 21 February 2008.

At this Centre, the aim is to tackle the causes ofcrime in the area, as well as dealing with the crimesthemselves. They serve 80,000 people living in thelocal authority wards of Anfield, Everton, Countyand Kirkdale.

The Community Justice Centre, officially opened inOctober 2005, combines the powers of acourtroom, run by Judge David Fletcher, with arange of community resources, available to allNorth Liverpool residents as well as victims,witnesses and offenders. The Centre deals withproblems with anti-social behaviour and casesinvolving ‘lower level’ crimes committed in NorthLiverpool that affect quality of life for local people,such as vandalism and graffiti.

The Judge has a range of powers and can sentenceoffenders in a way that benefits the community,although he can also issue custodial sentenceswhere appropriate and necessary. He works with a‘problem solving’ team of experts drawn from arange of agencies, such as the Crown ProsecutionService, Probation Service and Youth OffendingTeam, together with specialists providing advice andsupport on drug and alcohol issues, housing anddebt. He can also offer support to offenders fromvolunteer mentors, able to provide practical supportin carrying out their sentence and achieving theirlonger term goals.

Together they aim to make sure offenders repaytheir debt to the local community, while at thesame time addressing the underlying issues thatcontribute to their offending. The team may makerecommendations for extra support such as a drugtreatment programme, or debt counselling, eitherthrough the centre or at other locations.

The Judge takes a personal interest in offenders andmeets them for regular reviews while they arecarrying out their sentence, where it involves acommunity penalty such as an unpaid work order.

Key findings for the commission� The Commission was impressed that the Judge

can interact with the ‘problem solving’ team sothat sentences are immediate, meaningful andcan be spelled out to defendants as soon aspossible in the criminal process.

� It was impressive how the Judge could monitoroffenders on community sentences by regularand rigorous review hearings, and in the eventof a break down of the sentence, takeimmediate steps to return offenders to court.

� The Commission was impressed by the fact thatall the key agencies which comprised the‘problem solving’ team were housed in thesame building ensuring that proactive liaisonbetween them was immediate resulting inspeedy outcomes compared to the Scottishsystem. The problem solving ethos thatpermeated the Centre was particularlyimpressive.

� Although the Judge and his team are committedto listening and responding to the views ofresidents to identify and understand theirconcerns they admitted that they have facedsome difficulty in terms of fully engaging thecommunity due to the ‘grass’ culture which isprevalent in the area which the Centre serves.Nonetheless, they hold regular meetings withtwo reference groups representing localresidents, businesses and young people, to helpthem decide priorities for the work the centretackles.

� The Centre’s overall aim is to reduce crime andbuild confidence in the criminal justice system.While the Commission was impressed by theCentre it was difficult to assess how far theyhad come in achieving those aims given that noformal evaluation of their success had takenplace as yet.

C. HIGHLIGHTS OF SELECTED COMMISSIONVISITS

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� There was a refreshing overall sense ofenthusiasm from all the agency workers housedin the Centre to view their role as working forthe Judge rather than solely their own particularorganisation.

Visit to IrelandThe Commission had a successful visit to Ireland inApril when Members of the Commission hadinformative discussions with a number of officialsfrom the Department of Justice, Equality and LawReform, the Irish Prison Service, the Irish ProbationService and the Irish Youth Justice Service.

The members also had the opportunity to meetJudge Michael Reilly, Inspector of Prisons, and JudgeMary Martin, Chair of the National Commission onRestorative Justice.

The Department of Justice, Equality and LawReform fulfils a number of responsibilities inrelation to prisons policy including:

� ensuring that the Irish Prison Service supportsthe aims and objectives of the Minister and theGovernment in relation to the management ofoffenders.

� ensuring that the regulatory framework whichgoverns the operation of the Irish prison systemis kept up to date.

� encouraging best practices, includingappropriate mechanisms of accountability forthe Irish Prison Service.

� promoting community safety through theeffective management of offenders, inaccordance with the law, sentences andsanctions issued by the courts.

Key Irish Prison Stats 2006:� Total Expenditure – €389m

� Staff – 3,140

� No. of Institutions – 14

� Average daily prisoner population – 3,191

� Committals – 12,157

� Cost of keeping an offender in custody –€91,700

The Children Act 2001 makes it illegal to order thedetention of a child (with effect from 1 March 2007)under 18 years to a prison. In addition, the Act hasbeen amended so that:

� responsibility for detention schools has beentransferred from the Minister for Education andScience to the Minister for Justice, Equality andLaw Reform;

� the detention school model i.e. an individualisedmodel of care and reintegration will be extendedto include 16 to 17 year olds.

St. Patrick’s Institution accepts sentenced and remand16 to 21 year old males on committal from thecourts and on transfer from other prisons. The IrishYouth Justice Service is undertaking a capitaldevelopment programme for new detention schools– on completion all 16 and 17-year-olds will beremoved from St Patrick’s Institution and willbecome the responsibility of the IYJS. At the timeof the Commission’s visit there were around 200young people in St Patrick’s – 21 under 16 and 46under 17.

Alternative sanctionsThose that we met suggested that there is noexcessive use of imprisonment as a sanction inIreland. Of the 120,000 or so convictions in itscriminal courts in 2006 less than 10% resulted inimprisonment. The courts appear to make liberal useof alternative sanctions including fines, communityservice, probation and suspended sentences. Insaying that, the timing of physically being placed ona community disposal was similar to the Scottishsystem – it could range from a few weeks to afew months.

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The Irish Youth Justice Service, set up in 2005, fundsorganisations and projects providing services,including Police and Probation Projects, to youngpeople aged under 18 years who find themselves inconflict with the law. Their remit is to improve thedelivery of youth justice services and reduce youthoffending. This challenge is met by focussing ondiversion and rehabilitation involving greater use ofcommunity based interventions and the promotionof initiatives to deal with young people who offend.Providing a safe and secure environment for detainedchildren and supporting their early re-integrationback into the community is also a key function.

It was acknowledged that prisoners serving lessthan 12 months exhibit very limited improvementin terms of rehabilitation as opposed to long-termers.75% of sentences were for less than 1 year. IrishPrison Service staff believed that you need at least4 years to make a positive difference in terms of anoffender’s behaviour. They are in the process ofrolling out a pilot ‘Integrated SentencedManagement’ which is similar to the IntegratedCase Management system run by SPS.

Like Scotland there is a large problem in terms ofalcohol/drug abuse with offenders in Ireland.Ireland’s prison population also has growingproblems in terms of mental health issues,especially the female prison population.

Key findings for the Commission� The Commission was impressed with the

decision to bring in legislation which meantthat no child under 18 would be detained inprison.

� They also found the notion appealing toestablish something akin to the Irish YouthJustice Service.

� The Commission was impressed how the courtsappear to make liberal use of alternativesanctions to custody, particularly the suspendedsentence.

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� In Ireland the prison you’re sent to is primarilydictated by your family circumstances (locationetc). This does not always happen in Scotlandand it appealed to the Commission.

� In terms of community disposals theCommission was impressed by the fact thatprobation workers would ensure that offenderswould keep to their appointments etc, by goingto their accommodation to encourage them toattend.

Visit toNewYorkThe Commission visited three projects in NewYorkin April; the Midtown Community Court, the RedHook Community Justice Centre and BronxCommunity Solutions. The Commission also had theopportunity to meet with Chief James Tuller, aCommanding Officer of the NYPD, to discusspolicing history/developments within the city.

Midtown Community CourtLaunched in 1993, the Midtown Community Courttargets quality-of-life offences, such as prostitution,illegal vending, graffiti, shoplifting, fare-beating andvandalism. Typically in these cases, judges are forcedto choose between a few days of jail time andnothing at all – sentences that fail to impress thevictim, the community and the defendants thatthese offences are taken seriously. In contrast, theMidtown Community Court sentences low-leveloffenders to pay back the neighbourhood throughcommunity service, while at the same time offeringthem help with problems that often underliecriminal behaviour. The Court works in partnershipwith local residents, businesses and social serviceagencies in order to organise community serviceprojects and provide on-site social services,including drug treatment, mental healthcounselling, and job training.

The Court aims to ‘make justice visible’ by makingoffenders doing community service wear brightblue vests, etc. Offenders at Midtown pay back thecommunity through visible community serviceprojects – painting over graffiti, sweeping thestreets, and cleaning local parks.

The court also aims to ‘make justice swift’.Immediate sentencing sends the message tooffenders that crime has consequences and thatthey will be held accountable for their actions.Offenders often begin their sentences within 24 hoursof appearing before the judge.The Court’s compliancerate is 75 % for community service which is thehighest in the city.

Previously community sentences were solely issuedby the criminal courts in Manhattan at a rate of29%. Since the Midtown Community Court openedthis has risen to 69%. In conjunction withaggressive law enforcement and economicdevelopment efforts, the Court has had an impacton neighbourhood crime: prostitution arrestsdropped 56% and illegal vending is down 24%.

RedHook Community Justice CentreThe Red Hook Justice Centre, launched in 2000,seeks to solve neighbourhood problems like drugs,crime, domestic violence and landlord-tenant disputes.At Red Hook, a single judge hears neighbourhoodcases that under ordinary circumstances would goto three different courts – Civil, Family and Criminal.The goal is to offer a coordinated, rather thanpiecemeal, approach to people's problems. The RedHook judge has an array of sanctions and servicesat his disposal, including community restitutionprojects, on-site educational workshops, drugtreatment and mental health counselling – allrigorously monitored to ensure accountability anddrive home notions of individual responsibility.

The courthouse is the hub for an array ofunconventional programs that engage localresidents in ‘doing justice’. These include mediation,community service projects that put localvolunteers to work repairing conditions of disorderand a Youth Court where teenagers resolve actualcases involving their peers. The idea here is toengage the community in aggressive crimeprevention, solving local problems before they evencome to court.

Bronx Community SolutionsBronx Community Solutions is an initiative that seeksto apply a problem-solving approach to non-violentcases in the Bronx. Its goal is to provide judges withincreased sentencing options for non-violent offensessuch as drug possession, prostitution and shoplifting.By combining punishment with help, BronxCommunity Solutions seeks to reduce the Bronx’sreliance on expensive and ineffective short-term jailsentences, and build public confidence that thesystem is holding offenders accountable andoffering them the assistance they need to avoidfurther criminal conduct. The project, the largest ofits kind, is the nation’s most ambitious experimentin going to scale with problem-solving justice.

Rather than the Midtown or Red Hook set-upswhere they have their own separate communitycourt Bronx Community Solutions is run fromwithin the Bronx’s actual criminal court. All judgesin the Bronx have a broad set of sentencing optionsat their disposal, including drug treatment, jobtraining, family services and mental health counselling.Offenders will be assigned to community servicework in neighbourhoods throughout the Bronx.Project staff will work with residents andcommunity groups to create community serviceoptions that respond to local problems.

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Key findings for the Commission� The immediacy of the overall community court

system. Offenders can be sentenced by theJudge to a community disposal and directed tothe community service team (within the samebuilding) to start it. This can take a matter ofminutes.

� Visibility of community service. Offenders areseen ‘paying back’ to their communities fortheir offending behaviour.

� The range of options and disposals available tothe Judge.

� The swiftness and effectiveness of thesentencing process. The Judge sits with accessto a screen divided into 4 sections:

1. Lists the complaint/offence.

2. Lists the offender’s previous convictions/outstanding warrants.

3. Lists the social needs of the offender –housing, addictions, etc.

4. Advice from the Resource Coordinator onwhat they think should happen to theoffender.

This contributes to the swiftness in sentencingwithout the judge having to plough throughreports or request further reports.

� The rise and effective use of viable communityalternatives in terms of both the offender andthe public.

� The overall reduction in crime in NewYork throughthe ‘BrokenWindows’ and CompStat approaches.

� There is a high level of public confidence in thesystem. Before Red Hook opened, only 11% ofresidents had a positive view of the court systemcompared to recent surveys indicating that over70% express approval of the Justice Centre.

� In a survey of 500 Midtown residents conducted2 years after the court opened, 56% said they’dbe willing to pay more taxes for a communitycourt.

Visit to FinlandThe Commission visited Helsinki on 6-7 June andmet with officials from the Ministry of Justice inFinland, the National Institute of Legal Policy, theProbation Service, the Criminal Sanctions Agency,the Prison Service, the Police and the Ministry ofthe Interior. The Commission also visitedSuomenlinna Open Prison where they had theopportunity to talk to offenders.

The Commission found the Finnish principles ofimprisonment fairly liberal in that it should onlyinclude the loss of liberty. There is no mention of‘punishment’ or ‘deterrence’ within their legislationunlike in Scotland. The conditions in prisons arearranged so that they correspond to livingconditions in society – work, housing etc – they aimto maintain a ‘normality principle’. Indeed, at theopen prison on Suomenlinna offenders were paidaround €200 per week to carry out stone masonry.

The goal of the enforcement of imprisonment is toreduce recidivism and increase the prisoner’s abilityto lead a life without crime by promoting theprisoner’s life control and resettlement into society.It also aims to prevent committing new crimesduring the sentence. There appears to be a notionthat in order to tackle violent crime you need socialinterventions.

Sentence planWith the exception of very short sentence prisoners,a sentence plan is drawn up for each prisoner inFinland which covers allocation, activities, prisonleaves and conditional release. It covers the wholeprison term and also the parole period. By observingthe plan the prisoner will gain certain benefits/incentives, e.g. transfers to the open estate, prisonleaves, allocation to an institution outside prisonand early release under supervision. In terms ofconditional release:

� first timers are released after half of theirsentence;

� reoffenders are released after two thirds of theirsentence;

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� If the offence is committed under age 21 theoffender is release after serving one-third.

Front and back doorBoth ‘front and back door’ strategies are used inFinland. ‘Front door’ strategies include the increaseduse of alternatives to unconditional imprisonment,for example community service and electronicmonitoring. ‘Backdoor’ strategies include earlyrelease and conditional release. If an offender whobreaches his community sentence conditions is sentto custody he or she will receive further conditionson his or her release from prison.

Juvenile justiceJuvenile justice has also been liberalised. Criminalsaged 15 to 17 can only be imprisoned forextraordinary reasons. Additionally, first timeprisoners who have committed their crime before theage of 21 are released after serving just one-third oftheir sentence. Children under the age of 15 cannotbe charged with a crime.Young offenders who havecommitted their crimes between 18 and 20 years ofage can still be punished with a life sentence for avery serious crime such as murder but the sentenceis routinely commuted and the prisoner released asearly as 10 to 12 years into the sentence. Adult lifesentence prisoners can be released after serving 12years of their sentence. In practice a life sentenceprisoner serves around 14 to 16 years in custody.

Nopolitical controlThe absence of direct political control was criticalto the Finnish transformation. Despite theenormous changes in Finnish criminal justice, crimehas never been an important political issue withnone of the major parties taking it on as theiragenda. It seems that even Finnish victims of crimeseem to be satisfied with that approach.Victims'organisations act as support groups, not politicallobbies. Also, the media in Finland tend not tosensationalise crime stories. The majority ofreporting is done through ‘quality papers’ whoseline is sensible in the main. The tabloids are nottaken too seriously.

Key findings for the Commission:� Bringing in legislation that directly focuses on

reducing the prison population.

� The liberal concept behind the role prisonsshould play – only loss of liberty, prisoners’rights, ‘normality principle’.

� The Commission was impressed with the powerFinnish Judges have of commuting custodialsentences to community sentences.

� Interesting concept of parole and the ‘backdoorpolicy’.

� The Commission was impressed by how Finlandtreats its juvenile offenders, especially thenotion that you would only imprison someonebetween 15 and 21 if it was absolutelynecessary.

� The fact that crime is not a political issue andthere appears to be cross-party agreement onthe key issues and drivers.

� Refreshing attitude of the Finnish media interms of not sensationalising crime relatedpieces.

Visit to Falkirk Council Criminal Justice ServiceMembers of the Commission who visited Falkirk inMay were immediately struck by the enthusiasmand drive of the entire Community Service teamthere. They witnessed a programme of activitywhich seemed to them to be more immediate andeffective than is the case in other areas of Scotland.

In terms of the delivery and timing of communitydisposals, most people who receive CommunityService Orders in Falkirk are actually starting workon them within a week. In addition, initiativesundertaken in conjunction with Falkirk College haveled to the delivery of a service which not onlybenefits offenders but also the community itself.Courses such as ‘Fresh Start’ and the ConstructionSite Competence Scheme increase the opportunityfor offenders to learn so that they can pursue andlead a life in which their offending will decrease oreven stop altogether.

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Thursday Court: Key to the effective disposal ofCSOs in Falkirk is the fact that most are made on aThursday at what is known as a ‘Remand Court’. Assoon as a person is sentenced to undertake acommunity sentence, the social worker present inCourt instructs them when to attend, later in theday, at the Criminal Justice office, in close proximityto the Court.

There, the terms and conditions of CommunityService Orders are explained to them in addition toany local arrangements. They are also given Healthand Safety leaflets to read later before attending aHealth and Safety course on the following Tuesday.They are also told on which day they will berequired to attend for work – at least once a week.A further assessment of the risk of reoffending andharm will also be carried out at this first interviewwhen a placement is also identified.

The building in which the Service operates is alsoshared with the offices serving Probation Orders,Drug Testing Treatment Orders and ‘Fast Track’, –Falkirk’s means of administering the drugs conditionsof Probation Orders. The benefits of having all theseservices co-located makes the supervision of CourtOrders much more easily managed.

In recognition of the specific issues pertinent towomen, a single sex group has been established inFalkirk to offer a safe, non threatening environmentfor women to offer each other positive support andto explore issues particular to them, to receivesupport and be taught new skills.

Getting qualified:A joinery workshop is availablewhich offers basic woodworking skills and moniesraised from the sale of any goods is given to localcharities thereby enhancing the usefulness of thescheme to the community in general. This is backedup by an evolving publicity and informationprogramme to raise the profile, in the Falkirkcommunity, of the effectiveness of the scheme.

In order to allow offenders to gain recognisablequalifications which might help their employability,the Health and Safety qualification was expandedto include the Construction Site CompetenceScheme which is now necessary for employment inthe construction industry.

Fresh Start: To further the prospect of employabilityin a wider context, it was decided to establish three10 week modules to address the needs of theservice users, particularly relating to literacy andnumeracy. Initially, these took place at the localCriminal Justice Office but have now been movedto the College campus.

The course was named ‘Fresh Start’ so as not tobring specific attention to this being a course forpeople on Orders of the Court. This also allowedclients to join the mainstream college, availingthemselves of the facilities and opportunities there,and helped to break down barriers. As a result, somehave now considered full time college courses oncetheir Orders had finished. One person has moved tofull time employment as a Phlebotomist, one hascommenced a University Arts course and another iskeen to undertake a Business Management courseonce his Order is completed.Additional benefitshave been the increased confidence of theattendees and their enthusiasm to comply with theother, more work related aspects of their Orders soas not to jeopardise their college course.

All round support: Before all these developmentswere undertaken, liaison took place with the localSheriffs through the bi-monthly Criminal Forummeetings hosted by the Sheriffs and attended byCriminal Justice SocialWork, Sheriff Clerks,Procurator Fiscals, other court officials, solicitorsand the police. These proposals were discussed andthe view of the Sheriffs was open and encouragingthereby allowing the Falkirk Council CommunityService Orders scheme to develop a different wayof working, deviating from the strict interpretationof National Standards.

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Local Sheriffs have given support to this and arealso keen to support the Falkirk Council CommunityService Orders scheme in other ways such asattending open days, and taking an interest in thework and placements undertaken. They have alsoadopted a ‘recall’ practice recalling to court atregular intervals those who are in breach of theirOrders, to monitor progress. This has beenexperienced as positive and motivating for someservice users.

The Falkirk Council Community Service Ordersscheme also has a high presence at the NationalCommunity Service forum, which is open to allthose working within Community Service Orders inScotland.At the early meetings, it was evident thatdifferent areas had different practices and somefocus was given to trying to use good practice fromall the areas. A working party was established tolook specifically at Health and Safety and one ofthe Falkirk Council Community Service Officerstook a lead role on this. A folder was compiled withthe practice from each contributing authority, sothat others can locate which practice suits theirscheme best and adopt this.

Key findings for the Commission:� Contrary to the mixed messages that the

Commission had previously heard from otherstakeholders about the delivery and timing ofcommunity disposals the Falkirk model seemedto be far more immediate and productive thanis the case in other areas of Scotland.

� The majority of people receiving CommunityService Orders are starting their work within7 days on average.

� The Commission was impressed by thebi-monthly Criminal Forum meetings that wereundertaken which included Criminal JusticeSocialWork, Sheriff Clerks, PF’s other CourtOfficials, Solicitors, Police and the local Sheriffs.

� Good examples of best practice abound rangingfrom the college ‘Fresh Start’ courses to theConstruction Site Competence Scheme.

� It was evident that there was a high degree ofenthusiasm and drive from the entire FalkirkCommunity Service Team to deliver a servicethat would not only benefit offenders but alsothe community.

� It was the first time the Commission had heardabout the ‘National Community Service forum’which was surprising given the nature of theirdeliberations.

218 Centre (Glasgow)The Commission visited the 218 Centre on 13 May2008.

The 218 Centre was established in Glasgow inAugust 2003 with the aim of providing a range ofservices for women in the criminal justice systemprimarily within the boundaries of Glasgow CityCouncil. Based on a single site, the Centre providesa day service and supported accommodation. Inaddition to prescribing facilities, it offers support –residential or daily – for detoxification.

It provides residential and community based resourcesin a safe environment to women aged 18 years ofage or over who have involvement in the criminaljustice system, who are assessed as particularlyvulnerable to custody or reoffending and who mayhave a substance misuse problem. The Centre is runby Turning Point, an organisation in the voluntarysector which provides support for those withcomplex social needs, particularly in relation todrug and alcohol issues.

218 is a service for women involved with thecriminal justice system which is designed to addressthe root causes of women's offending. It offersprogrammes of care, support, and developmentdesigned to stop women's offending by tacklingsubstance misuse and the trauma and poverty thatdrive it. 218 is regulated by Care Commissionguidelines for day services for adults, and forresidential services to people with drug or alcoholproblems.

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The objectives of 218 are to:

� provide a specialist facility for women who aresubject to the criminal justice system;

� provide a safe environment for women in whichto address offending behaviour;

� tackle the underlying causes of offendingbehaviour;

� help women to avert crises in their lives; and

� enable women to move on and reintegrate intosociety.

Women from Glasgow can access 218 from thecourts, from prison, or as part of a criminal justiceorder. They can be referred or can refer themselvesas long as they have been in custody – even policecustody – at some time in the previous 12 months.Any agency can refer women to the service. Thepurpose of 218 is to provide both diversion fromprosecution and an alternative to custody.

Key findings for the Commission:� One of the significant attributes of 218 is the

importance of providing a service able to dealwith all the issues a woman may face, in oneplace.Workers from a range of disciplines(service managers, project workers, healthprofessionals) are located together and requiredto work together as a team while retaining theirown identity and working to the ethos of theirown professional background.

� The significant rise in alcohol abuse of serviceusers presenting at the 218 Centre over the last2 years.

� The figures the Commission were shown (via achristo analysis) indicated that the 218 Centrewas making a significant impact in helpingwomen with a range of issues, particularly interms of reducing their criminal involvementand drug/alcohol abuse.

� Women who continue along the path ofaddiction and offending are likely to end up incustody if they fail to receive some sort ofsupport. 218 has developed a model ofintervention based on a recognition of theneeds of women in the criminal justice system,which attempts to respond to those needs andin doing so, aims to tackle the root causes ofoffending behaviour.

� The Commission were impressed by theenthusiasm of the 218 staff and their desire todeliver an effective and unique service. The 218staff make a concerted effort to link servicesacross a number of areas.

� The service users that the Commissionmembers spoke to actively praised the regimeat 218 and believed it addressed their needs.Support was made available to enable womento address problematic substance use, fromboth health and addiction workers. This wasviewed by service users and staff as a crucialcomponent of the service.

� The Commission were struck that given theapparent successes which the 218 Centreappears to deliver it was disappointing that itwas the only project of its kind in Scotland.

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Levels of Court and Sentencing Powers in ScotlandThere are four different levels of court withinScotland.We have the High Court, Sheriff and JuryCourt, Sheriff Summary Court and District Courts(which in some areas of Scotland are now calledJustice of the Peace Courts). Each of these levels ofcourt have different maximum sentencing limits –these are noted below:

High Court – unlimited imprisonment andunlimited fines. All community sentences apartfrom Supervised Attendance Orders.

Sheriff and Jury – up to 5 years’ imprisonment andunlimited fines. All community sentences.

Sheriff Summary (which means the sheriff sitsalone and decides both guilt/innocence andsentence) – up to 12 months’ imprisonment andfines of up to £10k.All community sentences.

District/JP Courts84 – up to 60 days imprisonmentand fines of up to £2.5k. Able to use ProbationOrders and Supervised Attendance Orders.

Community SentencingScotland currently has one of the most extensiveranges of alternatives to custody in Europe. Listedbelow are the main community sentences(alternatives to custody) available in Scotland.

Probation Remains the standard and mostfrequently used community disposal. The mainpurpose of probation is to work with offendersto prevent or reduce their reoffending bycombining oversight and control with help tolearn new behaviours and to deal with problemsassociated with offending (rehabilitation).Probation Orders can be used very flexibly bythe courts and additional conditions can beattached to them, for example: requiring theoffender to undertake unpaid work; imposing anelectronic monitoring requirement; requiringfinancial recompense to the victim orattendance at a specialist programme such asalcohol or drug treatment. An offender can beplaced on probation for a period of between6 months and 3 years. 8,400 probation orderswere made in 2005/06.

Community Service Orders85 Legislationrestricts Community Service Orders toconvictions which would otherwise haveresulted in a sentence of imprisonment ordetention.An offender given a communityservice order is required to carry out unpaidwork of benefit to the community for between80 and 240 hours in summary proceedings and300 hours in solemn proceedings.Workplacements, which are organised and supervisedby local authority staff take many forms.Approximately 5,900 community service orderswere imposed by courts in 2005/06.

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D. SENTENCING OPTIONS – CURRENT DISPOSALS AVAILABLE TOTHE COURTS

Supervised Attendance Orders: SAOs areintended as an alternative to custody for finedefaulters (people who do not or cannot paycourt imposed fines). They have been availablenationally since 1998. The philosophy of theSAO is a fine on time. The participant is requiredto undertake a programme of activities whichaim to stimulate the constructive use of timeand can include an educative element or involveunpaid work in the community. Offenders whodo not meet the terms of the Order are subjectto disciplinary proceedings and may findthemselves back in court facing a custodialsentence.The maximum number of hours for oneorder is 100, to be completed within 12 months.In 2005/06, 3,849 SAOs were made by courts.

Restriction of Liberty Orders (‘Tagging’):Restriction of Liberty Orders (RLOs) have beenavailable to courts across Scotland since May2002. They were piloted in Scotland from 1997,and a positive evaluation led to the decision byMinisters to make the Order availablethroughout Scotland. The offender, who must be16 or over, may be restricted to a particularplace or places for up to 12 hours per day for upto 12 months. Compliance with the order iselectronically monitored by a commercialcontractor by means of an unobtrusivetransmitter (tag) worn by the offender on his orher ankle. 984 RLOs were imposed in 2005/06.

Drug Treatment and Testing Orders: TheDrug Treatment and Testing Order offers anintensive regime of drug treatment and testingwith regular review by the courts. It targetsthose people whose offending is linked to theirdrug problem – for example those who steal tofund their drug habit. The intention of a DTTO isto help offenders overcome a drug addiction,thereby reducing or eliminating the need tooffend. Offenders subject to a DTTO arerequired to undertake regular drug testing andtreatment. They also reappear before a Sheriffevery month to account for their behaviour.DTTOs are available in the High Court andSheriff Courts throughout Scotland.

An independent evaluation of the Drug Treatmentand Testing Order pilots found it to be effective intackling the kind of substance misuse that can leadto involvement in crime – for example, after sixmonths on an Order, average expenditure on drugsdecreased from an average of £490 per weekpre-sentence to an average of £57 per week. Theevaluation, ‘Drug Treatment & Testing Orders –Evaluation of Scottish Pilots’, is available atwww.scotland.gov.uk/cru/kd01/green/dtts-00.asp.A more recent evaluation of the longer-termimpacts of DTTOs found that the order was havinga very positive impact upon reoffending rates. Forexample, after two years almost half of offenderssubject to an order had no further convictions. Thisis a major achievement given the offenders whoreceive a DTTO will usually have a long history ofcriminal behaviour with many previous convictionsand custodial sentences. This full evaluation reportcan be read at:http://www.scotland.gov.uk/cru/resfinds/rfdt-00.asp.

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Discretionary early release on licence (parole) hasoperated in Scotland since 1967. The existingstatutory regime is contained in the Prisoners andCriminal Proceedings (Scotland) Act 1993 (‘the1993 Act’), as amended. The 1993 Act has beenfrequently amended since it came into force on 1stOctober 1993, most recently by the Managementof Offenders etc. (Scotland) Act 2005 (‘the 2005Act’) which received Royal Assent on 8th December2005. The 2005 Act introduced a scheme of HomeDetention Curfew. It also ended ‘unconditional’early release for sex offenders serving sentences of6 months or more and less than 4 years.With theexception of these recent changes, early releasefrom prison is governed by sentence length.

‘Early release’ is the term given to the presentsystem which permits the release of a prisoner, oneither a discretionary or an automatic basis andeither with supervision or without, prior to theexpiry of the sentence of imprisonment imposed bythe court. The current arrangements are:

� prisoners (short-term prisoners) sentenced toless than a 4-year term of imprisonment, unlessmade subject to a supervised release order, arereleased automatically and without supervisionafter serving one-half of their sentence;

� prisoners (long term prisoners) sentenced to4 years or more may be released on licenceafter serving one-half of their sentence if this isdirected by the Parole Board for Scotland andmust be released on licence after serving two-thirds of their sentence;

� prisoners (extended sentence prisoners) subjectto an extended sentence are released onsupervised licence; and

� prisoners sentenced to life imprisonment maybe released on life licence after serving in fullthe ‘punishment part’ of their sentence imposedby the court, if this is directed by the ParoleBoard.

Where any prisoner is released early, he or sheremains liable to recall to custody for the remainderof their sentence if they breach a condition of licence.Once a short-term prisoner has served one-half oftheir sentence, the Scottish Ministers are under aduty to release them without supervision unlesssuch a prisoner has been made the subject of asupervised release order imposed at the date of theoriginal sentence, provided that they are not a sexoffender (see paragraph below) whose offence wascommitted after 30 September 1998. On release ashort-term prisoner is not under any form ofcompulsory supervision but may be returned tocustody by the courts under section 16 of the 1993Act if he or she commits another imprisonableoffence before the expiry of the original sentence.

The Management of Offenders (Scotland) Act 2005introduced new provisions for sex offenderssentenced to a period of imprisonment of between6 months and 4 years. These require such shortterm sentence prisoners to be released on licence,rather than being released unconditionally, at thehalf-way stage of their sentence.

Once a long-term prisoner has served one-half oftheir sentence they may be released on licence. Thedecision rests with the Parole Board.Where theParole Board recommends release the ScottishMinisters are under a duty to release the prisoner.The Parole Board decides the licence conditions. Thelicence, unless previously revoked, expires at thesentence end date (i.e. the date on which the fullsentence imposed by the court expires).

Once a long-term prisoner has served two-thirds oftheir sentence the Scottish Ministers are under aduty to release them on licence. Again, the ParoleBoard decides the licence conditions. The licence,unless previously revoked, expires at the sentenceend date. A long-term prisoner (in the same way asa short-term prisoner) may be returned to custodyby the courts under section 16 of the 1993 Act if heor she commits another imprisonable offencebefore the sentence end date.

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E. CURRENT EARLY RELEASE ARRANGEMENTS

The Management of Offenders etc. (Scotland) Act2005 amended the 1993 Act to allow certain short-and long-term prisoners sentenced to 3 months ormore to be released on home detention curfew(HDC). This is a form of conditional release and wasimplemented for certain short-term prisoners inJuly 2006.

An extended sentence may be imposed on certainoffenders convicted of a sexual or a violent offence.All prisoners subject to an extended sentence arereleased on licence.Where the ‘custodial term’ isless than 4 years the prisoner is releasedautomatically at the half-way stage of the custodialterm and is on licence until the end of the‘extension period’. Thereafter, during the remaininghalf of the ‘custodial term’, the prisoner is ‘at risk’ ofbeing returned to custody by the courts undersection 16 of the 1993 Act in the same way as anyother short-term prisoner (with the exception ofshort-term sex offenders).

Where the ‘custodial term’ is 4 years or more theprisoner may be released after serving half of thisterm if the Parole Board recommends (in effect,directs) early release. If the Board does notrecommend release the prisoner will be releasedafter serving two-thirds of the ‘custodial term’. Ineither case the licence, unless previously revoked,does not expire until the end of the full extendedsentence imposed by the court, i.e. the custody partand the extension period.

Where a person is sentenced to life imprisonmentthe court is required to specify the ‘punishmentpart’ of the life sentence.When the punishmentpart has expired the prisoner has the right torequire the Scottish Ministers to refer his or hercase to the Parole Board. In practice the case isreferred to the Parole Board to enable it to considerthe prisoner’s case on the expiry of the punishmentpart or as soon as practicable thereafter. In itsconsideration of life prisoner cases the Parole Boardsits as a Tribunal with a legally qualified member inthe chair. The prisoner has the right to an oralhearing and to legal representation. If the ParoleBoard does not direct release it must set a date tocarry out a further hearing within a 2 yeartimescale. If the Parole Board directs release, theprisoner is released on a life licence. This willstipulate a number of conditions which they mustadhere to; failure to do so can result in them beingrecalled to custody where their case for re-releasewould again be considered by the Parole Board.

The release licence of any prisoner can be revokedand the prisoner returned to custody. Having beeninformed of a possible breach of licence by eitherlocal authority social workers or by the police,Scottish Ministers can issue a warning letter to theoffender (for ‘minor’ breaches), refer the matter tothe Parole Board for it to take a decision onwhether or not the offender should be recalled tocustody, or, if the nature of the breach suggestssignificant risk, can recall the offender to custodywithout referring the matter to the Parole Board inthe first instance.Where revocation isrecommended by the Parole Board the ScottishMinisters are obliged to revoke the licence and,where the person is at liberty, to recall the personto custody. This involves the individual beingapprehended by the police and returned to prison.

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Where an offender’s licence is revoked their casewill be referred to the Parole Board unless theyreceive another custodial sentence. (If the Boardwas involved in recommending that the licence berevoked then different members of the Board willconsider this reference.) If the Parole Board is satisfiedthat the offender does not require to continue to bedetained it will direct immediate re-release and theScottish Ministers are under a duty to release theoffender, on licence, as soon as is reasonablypracticable.Where the Parole Board does not directimmediate re-release the offender is liable to bedetained until the end of the sentence imposed bythe court (plus any during which the prisoner wasunlawfully at large) but may subsequently befurther reviewed by the Parole Board for release onlicence, normally on an annual basis, dependingupon how much of the original sentence remains tobe served.

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F. CUSTODIAL SENTENCES ANDWEAPONS (SCOTLAND) ACT 2007

The Custodial Sentences andWeapons (Scotland) Act2007 received Royal Assent on 19thApril 2007.Thecustodial elements of the 2007Act were intended toend unconditional early release for offenders servingsentences of 15 days or more. Its policy purpose wasthat where the courts had decided that prison is theappropriate punishment, the measures in the 2007Act ensure that the sentence is able to be tailored toaddress the risk and needs of the offender in a waythat contributes to reducing reoffending andenhancing public safety.The intention was that anoffender's sentence would be managed in anintegrated way, beginning in custody and continuingon into the community, allowing a structured planspecific to the individual's needs to be followed.Thearrangements in the 2007Act are:

� Apart from offenders who are sentenced to14 days or less, a combined structure formanaging sentences comprising a period incustody (the custody part) and a period onlicence in the community (the community part).The custody part will be aminimum of 50% ofthe sentence.

� It will be made clear at the time of sentencethat theminimum custody part will be 50% ofthe total sentence. This will be for the purposesof punishment and deterrence. However, thecourt will have the power to increase thestatutory minimum 50% if required in anyparticular case.

� Offenders will be subject to continuous reviewduring the custody part.Where ScottishMinisters consider that an offender should notbe released at the end of the custody part ongrounds of risk, they will refer such cases to theParole Board with a recommendation that theoffender should be kept in custody for longer.

� At the end of the custody part, the offender willbe on licence for the entire community part ofthe sentence. The licence conditions will enableprovision for a variable and flexible package ofmeasures including supervision if required andwill detail what obligations the offender has tomeet.

� Once an offender is released on licence theScottish Ministers will be solely responsible fordeciding to recall an offender to custody for aserious breach of a licence condition and wherehe or she presents an unacceptable risk topublic safety. The decision to continue to detaina recalled offender will be taken by the ParoleBoard.

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1. We use the term ‘judges’ to refer to all of thoseinvolved in sentencing offenders; justices of thepeace, magistrates, sheriffs and high court judges.

2. Its prison population increased by 30,000between 1995 and 2007, it added nine newprisons during this period, and has provisionallysaid it will add another 7,500 prison spaces bybuilding three ‘Titan’ prisons. The Ministry ofJustice concluded that much of the growth inthe numbers of people in custody was due tomany more offenders being recalled on licenceas well as longer sentences (reflecting a moreserious mix of crimes before courts as well asjudicial inclinations towards longer sentences).‘The Story of the Prison Population,’ Ministry ofJustice, (December 2007), available online at:http://www.parliament.uk/deposits/depositedpapers/2008/DEP2008-0362.pdf; Managingincreasing prisoner numbers in Scotland,AuditScotland (2008).

3. Kenny MacAskill, Speech to the ScottishParliament, 20 September 2007.

4. International Centre for Prison Studies, KingsCollege, London; Council of Europe Annual PenalStatistics Survey (2006), SPACE I.

5. Rates for Denmark (2006/07) and Canada(2004/05) are fiscal year averages; all otherrates were obtained from one day counts in2006, with the exception of New Zealand wheredata was obtained from a one day count in2007. These were compiled from the mostauthoritative sources in Prison Statistics Scotland,2006/07, Scottish Executive Statistical BulletinCrJ/2007/7.

6. Prison Statistics Scotland, 2006/07, ScottishExecutive Statistical Bulletin CrJ/2007/7.

7. This is because, in an ADP measurement, aprisoner serving a one-year sentence takes thesame amount of prison space (one bed for ayear) as 15 prisoners serving 24 day sentences(which is the average length of sentence amongthose serving six months or less; in other words itis a ‘typical’ short sentence).AnADP presentationwould count these 15 prisoners as taking up onlyone prison space, the same as a one-year prisoner.



10. Criminal Proceedings in Scottish Courts, 2005/06,Scottish Executive Statistical BulletinCrJ/2007/3.

11. HMIP Annual Report on CorntonVale (2005).

12. Prison Statistics Scotland, 2006/07, ScottishExecutive Statistical Bulletin CrJ/2007/7.While committing a new criminal offence whileon parole or a tag is one reason for beingrecalled to prison, many recalls are ‘technical’,i.e. for having failed to comply with the detailsof an order.

13. D. Nelken (2006), ‘Italy: A lesson in tolerance?’,in Muncie, J. and Goldson, B. (eds), ComparativeYouth Justice, SAGE publications, pp. 159-76;Janes, L. (2008), Criminal liability of minors andseverity of penalties: European trends anddevelopments, London: The Howard League forPenal Reform, citing Council of Europe (2006)Penological Information Bulletin; PrisonStatistics Scotland, 2006/07, Scottish ExecutiveStatistical Bulletin CrJ/2007/7.

14. Criminal Proceedings in Scottish Courts, 2005/06,Scottish Executive Statistical BulletinCrJ/2007/3.

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G. REFERENCES

15. Reconvictions of Offenders Discharged fromCustody or given Non-Custodial Sentences in2003/04, Scotland, Scottish GovernmentStatistical Bulletin CrJ/2007/9.

16. Scottish Prison Service, written evidence to thePrison Commission, November 2007. The lowestimate includes only annual operatingexpenditure on prisons (e.g. staff salaries andservices like food and electricity). It excludes, forexample, capital charges and the cost oftransporting prisoners to court and betweenprisons.

17. Alec Spencer (2008), ‘The Unnecessary Cost ofImprisonment,’ lecture, The Future of Prisons inScotland Conference, (8 February).

18. Managing increasing prisoner numbers inScotland,Audit Scotland (2008).

19. Tables 6 and 8, Reconvictions of OffendersDischarged fromCustody orGivenNon-CustodialSentences in 2003-04, Scotland, ScottishGovernment Statistical Bulletin CrJ/2007/9; P.Gendreau, C., Goggin, F. Cullen (1999),The Effectsof Prison Sentences on Recidivism, Departmentof the Solicitor General Canada; P. Gendreau, C.Goggin, F.T. Cullen, D.Andrews (2000), ‘Effectsof Community Sanctions and Incarceration onRecidivism’, Forum on Corrections Research, vol.12(2), http://www.csc-scc.gc.ca/text/pblct/forum/index_e.shtml

20. Criminal Proceedings in Scottish Courts,2006/07, Scottish Government StatisticalBulletin CrJ/2008/6.

21. Houchin, R. (2005) Social Exclusion andImprisonment in Scotland, Glasgow: GlasgowCaledonian University.

22. Social Exclusion Unit (2002) Reducingreoffending by ex-prisoners. London: Office ofthe Deputy Prime Minister.

23. Evidence by Sean McCollum, Families Outside:There’s a substantial body of research whichshows that obviously imprisonment has a hugeadverse impact on the families of the prisonersand these can range from financial difficulties,housing problems, difficulties with caring forchildren, a range of emotions, such as fear,anxiety, loneliness, shame and guilt and thestigma of criminality.

24. Codd, H. (2008), In the Shadow of Prison:Families, Imprisonment and Criminal Justice,Cullompton, UK:Willan; Golden, R. (2005),Mothers in Prison and the Families They LeaveBehind, NewYork: Routledge.

25. Downes, D. and Hansen, K. (2006), ‘Welfare andPunishment in Comparative Perspective,’ in S.Armstrong and L. McAra (eds.), Perspectives ofPunishment: the Contours of Control, Oxford:Oxford University Press, pp. 133-154.

26. Downes and Hansen (2006: 152).

27. Millie, A., Jacobson, J. and Hough, M. (2003),‘Understanding the growth in the prisonpopulation in England andWales’, CriminalJustice, 3(4) 369-387; J. Sutton (2004), ‘ThePolitical Economy of Imprisonment in AffluentWestern Democracies, 1960-1990,’AmericanSociological Review, vol. 69(2): 170-89; F. Zimring(2001), ‘Imprisonment Rates and the NewPolitics of Criminal Punishment,’ Punishment &Society, vol. 3(1): 161-66; Roche S (2007),‘Crime, punishment, and politics in comparativeperspective,’ in Crime and Justice–A Review ofResearch, vol. 36, M. Tonry (ed.), Chicago:University of Chicago Press, pp. 471-550.

28. A. Giddens (1990), The Consequences ofModernity, Cambridge: Polity; U. Beck (1992),Risk Society: Towards a new modernity, London:Sage; S.Walklate and G. Mythen (2008), ‘Howscared are we?,’ British Journal of Criminology,vol. 48(2): 209.

29. Houchin (2005).

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30. The source for the discussion of recorded crimestatistics is Recorded Crime Statistics Scotland,2006/07, Scottish Executive Statistical BulletinCrJ 2007/8.

31. This includes things such as resisting arrest orbreaching the conditions of bail.

32. Managing increasing prisoner numbers inScotland,Audit Scotland (2008).

33. Recorded Crime in Scotland Statistical Bulletinsand Prison Statistics Scotland StatisticalBulletins, Scottish Government.

34. Victim surveys have their own limitations whichcan lead to over and under reporting changes incrime (e.g. homeless and young people are notgenerally included in such surveys althoughthese groups experience disproportionately highlevels of crime). However, while comparisonsshould be cautiously undertaken, victimisationsurveys generally share the same biases and socan provide a useful measure of the magnitudeof crime in different countries.

35. Van Dijk,Van Kesteren, and Smit (2007),Criminal Victimisation in InternationalPerspective: Key findings from the 2004-2005ICVS and EU ICS.One-year prevalence rates.Survey respondents will have been askedwhether they have experienced a given crime inthe past year. Sexual assault rates arespecifically for sexual assaults against women(only female responses tabulated).

36. M. Browning and K. Bolling (2007), 2006Scottish Crime andVictimisation Survey: MainFindings, Scottish Government Social Research,p. 48.

37. ibid.

38. ibid., pp. 55-56.

39. ibid., p. 84.

40. TNS System Three (2007), Communitysentencing: Public Perceptions & AttitudesSummary Research Report, Scottish ExecutiveSocial Research, pp. 7-8.

41. ibid., p. 9.

42. ibid.

43. Reconvictions of offenders discharged fromcustody or given non-custodial sentences in2003/04, Scotland, Scottish GovernmentStatistical Bulletin CrJ/2007/9.

44. WhatWorks: Reducing Reoffending, Guidelinesfrom the Research (1995), J. Maguire (ed.),Chichester: JohnWiley & Sons.

45. Petrosino,A., Turpin-Petrosino, C., Buehler, J.(2003), ‘Scared Straight and other juvenileawareness programs for preventing juveniledelinquency:A systematic review of therandomized experimental evidence,’Annals ofthe American Academy of Political and SocialScience, vol. 589: 41-62.

46. J. Petersilia, E.P. Deschenes (1994), ‘WhatPunishes–Inmates Rank the Severity of Prisonvs. Intermediate Sanctions, Federal Probation,vol. 58(1): 3-8; J. Petersilia (1990), ‘WhenProbation Becomes More Dreaded than Prison,’Federal Probation, vol. 54(1): 23-27; Payne, B.K.and Gainey, R.R. (1998), ‘A qualitativeassessment of the pains experienced onelectronic monitoring,’ International Journal ofOffender Therapy and Comparative Criminology,vol. 42(2): 149-163l;Wood, P. B., & Grasmick, H.G. (1999). Toward the development ofpunishment equivalencies: Male and femaleinmates rate the severity of alternativesanctions compared to prison. Justice Quarterly,vol. 16: 19-50.

47. W. Searle, T. Knaggs, K. Simonsen (2003),‘Talking about sentences and crime: The views ofpeople on periodic detention’, Ministry ofJustice,Wellington: New Zealand.

48. Gendreau et al. (2000).

49. Gendreau et al. (2000); Maguire (1995).

50. Munro et al (2004), A Comparative Review ofAlternatives to Custody: Interim Report to TheScottish Parliament, p. 4.

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51. Nicholson, G. (2008) Ministerial DecisionMakingin Criminal Justice Cases – a report by SheriffPrincipal Gordon Nicholson KCB,QC. SheriffNicholson’s report discusses problemsconcerning the lack of a definition of seriousharm in the Custodial Sentences andWeapons(Scotland) Act 2007. He notes that: ‘“seriousharm” is in fact given a statutory definition insection 224(3) of the English Criminal JusticeAct 2003. That definition, as has beenmentioned earlier, is that the words mean“death or serious personal injury, whetherphysical or psychological”. That definitionrepresents a very high threshold but, given thatit appears in a recent statute which is in forceelsewhere in the United Kingdom, I considerthat there would have to be very compellingreasons for defining the words in Scotland in amanner which would result in a lower threshold’(p37). Clearly it would be of fundamentalimportance for the National Sentencing Councilto address this question.

52. Coyle,A. (2005) Understanding prisons: Key issuesin policy and practice. Maidenhead: OpenUniversity Press.

53. In one important recent study, in discussing thepurposes of punishment, crime victims placed‘getting offenders to change their ways’ secondonly to making them understanding the hurttheir offences caused (Rex, S (2004),‘Punishment as Communication’ in Bottoms,A.,Rex, S. and Robinson, G. (eds.) Alternatives toPrison: Options for an insecure society.Cullompton:Willan).

54. For further details on the progress of theSummary Justice Reforms, seehttp://www.scotland.gov.uk/Publications/2007/09/06092618/6

55. Prison Statistics Scotland, 2006/07, ScottishExecutive Statistical Bulletin CrJ 2007/7. Theremand figure excludes receptions on remandto legalised police cells.

56. Data from Scottish Government AnalyticalServices Division.

57. The Sentencing Commission for Scotland’sReport on the Use of Bail and Remand (2005)noted the successes of bail supervision, notingin particular successes achieved at the 218project for women offenders. See:http://www.scottishsentencingcommission.gov.uk/docs/scorubr.pdf

58. It is important to underline that these are thereconviction rates by age for all types ofsentence, not for prison sentences.Reconvictions of Offenders Discharged fromCustody or Given Non-Custodial Sentences in2003-04, Scotland, Scottish GovernmentStatistical Bulletin CrJ 2007/9, see:http://www.scotland.gov.uk/resource/doc/199703/0053335.pdf

59. Janes, L. (2008), Criminal liability of minors andseverity of penalties: European trends anddevelopments. London: The Howard League forPenal Reform, citing Council of Europe (2006)Penological Information Bulletin.

60. Audit Scotland (2008),Managing increasingprisoner numbers in Scotland. Edinburgh:AuditScotland.

61. For details of this scheme, see:http://www.lccs.org.uk/

62. The SocialWork Services Inspectorate (1996)report – Helping the Court Decide (Edinburgh:Scottish Office) states that 108,000 reportswere completed in 1991-1996. Criminal JusticeSocialWork Statistics 2006/7, ScottishGovernment Statistical Bulletin CrJ 2007/12suggests that the total number of reportscompleted in 2002-2007 was 283,000. (See:http://openscotland.gov.uk/Resource/Doc/209079/0055387.pdf

63. McIvor, G., Barnsdale, L., Eley, S., Malloch, M.,Yates, R. and Brown A. (2006) An evaluation ofthe Glasgow and Fife Drug Courts and their aimto reduce drug use and drug related reoffending.Edinburgh: Scottish Executive. See:http://www.scotland.gov.uk/Publications/2006/03/28112035/12

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64. Weaver, B. and McNeill, F. (2007) Giving UpCrime:Directions for Policy. Edinburgh: ScottishConsortium on Crime and Criminal Justice. See:http://www.strath.ac.uk/media/media_64785_en.pdf

65. Criminal Proceedings in Scottish Courts, 2006/07,Scottish Government Statistical BulletinCrJ/2008/6, Table 10. See:http://www.scotland.gov.uk/Publications/2008/06/02124526/52

66. Criminal Proceedings in Scottish Courts, 2006/07,Scottish Government Statistical BulletinCrJ/2008/6, Table 10. See:http://www.scotland.gov.uk/Publications/2008/06/02124526/52

67. Written submission fromAlec Spencer, citingAsh, R. and Biggar, H. (2002) Return to Custodyin Scottish Prisons 2002. Edinburgh: ScottishPrison Service. Table 7.

68. See page 13 – table 3.

69. Written submission fromAlec Spencer.

70. For an authoritative overview, see Coyle, A.(2005) Understanding prisons: Key issues inpolicy and practice. Maidenhead: OpenUniversity Press.

71. McNeill, F. andWhyte, B. (2007) ReducingReoffending: SocialWork and Community Justicein Scotland. Cullompton:Willan.

72. Ford, J. Sparks, R and Duff, A. (forthcoming).Social inequality, crime and violence. Edinburgh:Scottish Consortium on Crime and CriminalJustice;Alec Spencer, Rethinking Imprisonment inScotland:The Dilemma for Prison Reform and theChallenges Beyond, Submission to the ScottishPrisons Commission.

73. Reconvictions of Offenders Discharged fromCustody or Given Non-Custodial Sentences in2003-04, Scotland, Scottish GovernmentStatistical Bulletin CrJ 2007/9, see:http://www.scotland.gov.uk/resource/doc/199703/0053335.pdf

74. Social Exclusion Unit (2002) Reducingreoffending by ex-prisoners. London: Office ofthe Deputy Prime Minister.

75. Data from Scottish Prison Service

76. Padfield, N. and Maruna, S. (2006) ‘The revolvingdoor at the prison gate: Exploring the increasein recalls to prison’, Criminology and CriminalJustice 6(3): 329-353.

77. This chart is based on data from the PrisonStatistics Scotland,2006/07,Scottish GovernmentStatistical Bulletin CrJ 2007/7 and from theParole Board for Scotland’s 2006 Annual Report(available at:http://www.scottishparoleboard.gov.uk/pdf/Parole%20Board%202006.pdf). The prisonstatistics relate to financial years as shown, theParole Board figures relate to calendar years.

78. Nicholson, G. (2008) Ministerial DecisionMakingin Criminal Justice Cases – a report by SheriffPrincipal Gordon Nicholson KCB,QC.

79. Criminal Proceedings in the Scottish Courts2005-06, Scottish Government StatisticalBulletin CrJ/2007/3, Table 10.

80. Criminal Proceedings in the Scottish Courts2005-06,Scottish Government Statistical BulletinCrJ/2007/3), Table 10

81. Audit Scotland (2008) Managing increasingprisoner numbers in Scotland. Edinburgh:AuditScotland.

82. Scottish Prison Service (2008) A Review of theCircumstances Surrounding the Transfer ofPrisoner Robert Foye (Prisoner Number 26163)to the Open Estate (HMP Castle Huntly). See:http://www.sps.gov.uk//MultimediaGallery/c67c41c1-efde-4e2f-984e-95ec40cc4eea.pdf

83. Data from Criminal Proceedings in ScottishCourts2005-06, Scottish Government StatisticalBulletin CrJ/2007/3, Table 14. Calculation isbased on the offenders whose last sentence in2006/07 was custody and averaging those whohad 1-2 and 3-10 prior custodial sentences;those with more than 10 custodial sentenceswere treated as having had 11 prior suchsentences.

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84. A pilot exercise was due to get underway inJune in the Lothians and Borders Sheriffdom,which will provide for the majority of courts(but not those inWest Lothian) to have access alesser form of DTTOs for use with lower tariffoffenders. This sentence option will be availableto justice of the peace courts in the pilot area.

85. The report of the Review of CommunityPenalties published last November signalled theGovernment’s intention to legislate for a newversion of Community Service Orders, whichwill embrace Supervised Attendance Orders. Theintention is that the revamped CSO, which willno longer be a direct alternative to custody andwill comprise between 20 and 300 hours ofunpaid work, will be available to all courtsincluding the JP courts.

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