You raise an excellent question about resources, which gets the heart of the matter, convener. We talk about the proposal as something bold and radical, but if you look at the formulation of section 17 of the Criminal Justice and Licensing (Scotland) Act 2010, you will see that the proposal is a rehash of what we have been trying to do for the past 30 to 40 years.
The draft order does not use the language in the Criminal Justice and Licensing (Scotland) Act 2010 but, as ministers have said again, it basically says that prison is a last resort and that a custodial sentence should not be passed unless appropriate. Who passes a sentence that they think would be inappropriate? Who takes any serious decision in their life that they think is inappropriate?
I am less sure that the proposal will change a huge amount. We could easily end up in a polarised debate. I absolutely understand the concerns of victims groups and I see the point that they make but, given how permissive the legislation is, I am not sure that we will see that much of a difference. In fact, the Government’s own research, which was published in 2015, said that
“there was little sign of PASS”—
presumption against short sentences—
“figuring prominently or explicitly in decision-making”.
That again makes the point that that presumption would not, in itself, make a difference.
The problem is the one that you identify: there is a group of people serving short custodial prison sentences who are almost serving a life sentence by instalments. Everybody pretty much agrees that many of those are non-dangerous people who should not be going to prison at all and do not pose a threat, other than often to themselves. It is wrong—it is too easy—to blame the sentencers, or individual professionals, such as social workers. People in this group end up going to prison because it appears that no one else wants them. Their lives seem to be so chaotic—they are homeless and have addiction, physical and mental health problems—and so chronic that a sheriff will often say, “What else can I do? Nobody else wants them.” I do not think that it is fair, in general terms, to blame sheriffs.
Sheriffs are left with an apparent discretion that is actually a hollow virility symbol, because they are not equipped to do what they would like to do. I think that most know very well that prison is not the right place for people whose needs are often far greater than their offending. They might have committed minor offences, but they do not show up for appointments and all the rest of it, so the sheriff will eventually say, “What else can I do?” I think that we can get a consensus about that group. We should be thinking about and targeting that group.
Unless there is a plan to ensure that there is a major change of resourcing not just in community justice but in community services more generally—often community services will say that they cannot deal with a person because it is too difficult—we will continue to end up using prison. What are we doing? Essentially, we are using the resource of prison in the same way that the Victorians did: as a poorhouse. We use prison as the last line in the welfare state. That is a societal issue—it is not fair to point the finger at individual professionals—and it need not be a party-political issue.
My proposal—I have set it out briefly in my written submission—is that we should have a principle stating who should not normally be imprisoned, or what cases should not normally lead to a prison sentence, and that we have a date by which we ensure that there is a transfer of resources. Unless there is such a transfer, I do not think that the proposed presumption, whether it be against sentences of 12 months or whatever, will make much difference because—quite rightly—the sheriffs will, by and large, say that imprisonment is still appropriate because there is nothing else. Prison is the last resort; it becomes the default when nothing else seems to be there. Prison never has to prove itself; everything else has to prove itself.
Obviously, there is an issue here that I want the committee to consider. The proposed order may well go through but, in a sense, the much bigger issue is for us to have a vision. If we want Scotland to have, as successive justice secretaries have said, one of the most progressive justice systems in Europe, we need a vision to say that, by 2040, or by such and such a year—we should give ourselves a target—we will stop using prison essentially as a place to access services.
I heard what Colin McConnell said. He is doing the right thing as the chief executive of the SPS. However, as a society, we need to think about what we should be doing. Should we really be locking people up essentially because of their needs, including poverty-related needs? It does not even make financial sense to do that.