Justice Committee

Meeting date: Tuesday, June 11, 2019

Official Report 662KB pdf

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Subordinate Legislation

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Presumption Against Short Periods of Imprisonment (Scotland) Order 2019 [Draft]

Agenda item 2 is continuation of our scrutiny of proposals to change the time period with regard to the presumption against short sentences. I am pleased to welcome to the meeting the Cabinet Secretary for Justice and his Scottish Government officials. David Doris is head of the community justice interventions unit, Peter Conlong is head of the justice analytical unit and Isobel Joiner is from the directorate for legal services.

I refer members to paper 1, which is a public paper, and paper 2, which is a private paper.

First, the cabinet secretary will make a short opening statement of up to two minutes.

In that case, convener, I will speak quickly.

Thank you for inviting me to speak to the draft order. We are seeking parliamentary approval to extend the presumption in question now that additional safeguards for protecting victims through the Domestic Abuse (Scotland) Act 2018 are in force, and as we committed to do in our programme for government.

The presumption is not a ban. We are not abolishing sentences of under 12 months, and the judiciary will continue to be able to impose custodial sentences where alternatives are not appropriate. Extending the presumption is not a silver bullet, but must be seen as part of a broader evidence-led, preventative approach.

The evidence is clear that short periods of imprisonment do not work. They disrupt the things that are most likely to help to reduce offending, such as family relationships, housing, employment and access to healthcare and support. People who are released from short custodial sentences of 12 months or less are reconvicted nearly twice as often as those who received a community payback order.

We have all heard community sentences being described as “soft justice”, but that is both misleading and damaging. In its written evidence to the committee, the Scottish Sentencing Council states that, in its view,

“community ... sentences are not a ‘soft option’, as is sometimes suggested.”

A recent Council of Europe report found that Scotland has the third highest correctional rate in Europe, at 548 people per 100,000, and committee members will know that we have the highest imprisonment rate in western Europe, with 150 people incarcerated per 100,000 of the population. Those are not statistics to be proud of, although we have taken bold action that has helped to cut crime by around a third over the past decade and to drive reconviction rates down to a 19-year low.

We need to get away from the view that justice is either hard or soft. Justice needs to be proportionate and fair and, above all, to be smart and evidence led. It needs to be tailored to the individual while ensuring the safety of victims, and it needs to provide the opportunity for rehabilitation while ensuring that those whose offending has harmed the community pay back for their crimes. We need community sentences in which sentencers, offenders, communities and victims have confidence, and that is why we have invested an additional £9.5 million in community justice services, bringing investment in community justice social work to over £100 million.

It is clear from the evidence that the committee has taken that there is strong support for extending the presumption provided that there are community-based interventions that are appropriate, resourced and effective.

During the committee’s evidence-taking sessions, the issue of remand has been raised in recognition of the fact that its impact can be similar to that of short custodial sentences. Prisoners who are on remand make up about 20 per cent of the prison population at any given time, and the figure for women is 25 per cent. The number of people who are held on remand is at its highest level for more than five years.

Last year, following the committee’s inquiry into the use of remand in Scotland, it made a number of recommendations and observed that, in summary cases, the conversion rate of remand to custodial sentences was relatively low. In responding to that report and in delivering our programme for government commitments on bail supervision, guidance and funding, we have taken action. However, we are open to considering on a cross-party basis further options that could help to respond to the high proportion of prisoners who are held on remand.

I hope that my opening statement has been helpful. I am happy to answer any questions on the proposed extension of the presumption against short sentences.

Thank you, cabinet secretary. What evidence is there on the impact of the current presumption on sentencing?

There are numerous pieces of evidence. Numerous articles have been written and numerous academics have researched the impact of short custodial sentences against the rehabilitative effect of community sentencing, and those academics are unequivocal in saying that short sentences are more disruptive and less likely than community sentences to help with the rehabilitation journey.

The independent United Kingdom-based Crest Advisory report on the impact of the presumption against short sentences endorsed the rationale for the presumption, stating:

“reconviction rates are particularly high for shorter custodial sentences compared to longer sentence lengths ... the reduction in reconviction rates correlates with the decrease in the use of short custodial sentences, as would be expected”.

We know from the available figures that people who receive a short custodial sentence are reconvicted nearly twice as often as people who receive a community payback order. The evidence for the progressive reform is absolutely overwhelming.

You will be aware that the committee took extensive evidence at last week’s meeting, and it was said that the use of short sentences was falling prior to the introduction of the presumption against them, so it seems fair to say that the presumption has not had a significant impact on sentencing. In addition—this relates to something that you have reiterated—Professor Tata questioned whether the presumption against sentences of three months and the use of CPOs, since their introduction in 2011 alongside other reforms, have helped to achieve the 19-year low in reconviction rates. He said that the assertion that the presumption against short sentences has specifically led to the change does not stand up to scrutiny, given that so many other direct measures have been taken that have had an impact on reconviction rates.

With the greatest of respect, it would be incredible if you could find evidence that showed that short sentences have the rehabilitative impact that community sentences have. You are absolutely right to say that we can argue about some of the nuances in relation to the impact of the PASS. I accept that there are some issues relating to control factors because, depending on the seriousness of the offence, people might be more likely to get a custodial sentence than a community payback order. We can argue about the nuances, but if—

I think—

I will just finish this point. If we take a step back and look at the issue that we are discussing, we find that the evidence is absolutely unequivocal. That is why we have criminologist after academic saying that they support the presumption against short sentences. There is no doubt that community sentences address the root causes behind people’s offending and are much more effective for rehabilitation than short custodial sentences are.

Just to be clear, are you saying that the presumption against three-month sentences has achieved the 19-year low in reconviction rates?

I am certainly saying that that is a part of it—I do not doubt that for a minute. The impact might well be moderate, but even a moderate impact will have a significant effect in ensuring that people are not victims of crime in future.

Let me give you the numbers. The proportion of individuals receiving a custodial sentence of three months or less has fallen from 35 per cent in 2010-11 to 27 per cent in 2017. That is around 3,200 individuals. Although that might be seen as moderate, it is still 3,200 individuals who will, we hope, be better placed on their journey of rehabilitation, which will, we hope, mean fewer victims of crime.

I am not asserting that the 19-year low in reconviction rates has come about simply because of that one measure. In my opening remarks, I said that what we are presenting is not a silver bullet but an important measure in a broader package of justice reform.

The point was made last week that there is no evidence of a direct correlation between the two things, not least because of the use of the term “conviction” and the enormous growth in direct measures such as out-of-court offers of settlement, fiscal fines and so on. We heard that those alternatives have absolutely impacted on the drop in conviction rates.

However, you have answered that question, cabinet secretary, so we will move to a supplementary question from Shona Robison.

With regard to the evidence, you mentioned academics and criminologists, but have politicians or ministers from elsewhere—say, the UK Government—shown any interest in the evidence with regard to the presumption against three-month sentences?

Very much so. We can dance on the head of a pin and talk about specific nuances and so on—that is fair enough—but there is absolutely overwhelming evidence that short sentences simply do not work and that community alternatives are much more effective. The UK Government has made that point on numerous occasions on social media and other platforms. Indeed, it has often lauded Scotland and looked towards us and what we are doing up here.

One of the Conservative leadership candidates, Rory Stewart—I do not know where he is in the pecking order or whether he has the backing of any of the Conservative members here—has come to Scotland to learn more about our approach to the presumption against short sentences. Moreover, David Gauke, who is the Secretary of State for Justice in the UK Government and someone I have a lot of time for, has been quoted as saying that we need to move away from the labels of hard and soft justice and look towards smart justice.

The UK Government is not just bringing in a presumption, but going further by proposing a ban on short sentences of six months or less. David Gauke has said:

“I want a smarter justice system that reduces repeat crime by providing robust community alternatives to ineffective short prison sentences—supporting offenders to turn away from crime for good.”

Even those who might traditionally be seen as more Conservative and as not being associated with progressive justice reform can see that short sentences are not effective in dealing with the root causes of people’s offending.

Focusing again on the evidence, I note that, since 2003, the number of sentences of up to three months that have been handed out has approximately halved while, over the same period, sentences of between one and two years have doubled and sentences of more than two years have risen by approximately a third. The displacement is not perfect but, nevertheless, one might infer from those numbers that uptariffing has taken place.

Do you agree that those figures are evidence of that? More important, what steps or measures will you take to ensure that an outcome of the presumption against sentences of 12 months or less is not that sentences are increased to just over that threshold?

10:15  

That is a really important point and I thank Daniel Johnson for making it. I hope that I can give a couple of reassurances.

One of the reasons why we went for 12 months as opposed to any other timeframe is that it fits with the maximum sentence that can be imposed for summary proceedings. There could not necessarily be an uptariffing in that respect. Daniel Johnson is right to say that that could be inferred from the presumption as it stands, and we want to avoid that.

The broader issue that Daniel Johnson mentioned is also important, and the committee has taken evidence on it. We must ensure that the judiciary has confidence in the community justice landscape. There is clearly some evidence that sheriffs in some localities need that confidence and need to be persuaded about the merits of community-based alternatives and their robustness. That has to be part of the work that we do. I hope that the extension of the presumption will pass through committee, but we are still doing a lot of work on active engagement, and judicial confidence is a part of that.

By way of clarification, I note that David Gauke said that he wanted to learn from the mistakes that had been made up here, such as CPOs not being enforced.

Cabinet secretary, I take your point about the effectiveness of three-month sentences, but the committee heard last week that there is shockingly poor data on the effectiveness of community sentences. That is an important nuance to pick up.

My question is a simple one. You talked about fewer three-month sentences being imposed. What does your modelling suggest? If you get the presumption against 12 months, what does the modelling suggest will be the outcome? How many fewer criminals will go to prison and will go into the CPO system instead?

I take exception to what Liam Kerr said about David Gauke. I quoted directly from what David Gauke said on 4 June in response to Joanna Cherry MP when he was answering questions in the chamber. He said:

“I hope to be able to say more about the details of what we want to do in the not too distant future, but in respect of the approach that is being taken in Scotland, it is worth bearing in mind that it is already the case in England that a custodial sentence should be pursued only as a last resort, so there is already something approaching a presumption in the English system. I am interested in seeing whether we could go further than that, but I welcome the hon. and learned Lady’s approach—our shared approach, I think—of scepticism about the effectiveness of short sentences.”—[Official Report, House of Commons, 4 June 2019; Vol 661, c 15.]

When Rory Stewart was in his previous position as prisons minister, he did not come up here to berate the Scottish Government or the Scottish experience—he came to learn from it.

The modelling of the figures, numbers and statistics that we have in front of us is difficult to forecast. Ultimately, judges are the people who have the decision to make if there is a presumption. We can base the modelling on the existing presumption, but even that is riddled with difficulty, so it will be very much up to the judiciary. I will bring in Peter Conlong, as he is the independent expert on the statistics and he works for the justice department’s analytical services.

Liam Kerr touched upon the completion rates for CPOs. I note that fewer than a third of them do not complete. Liam Kerr’s inference is correct that the Government has to work hard to increase the completion rates. I accept that, and we have done that. They have increased from 64 per cent to 70 per cent in the past decade, but we have to go further.

However, I ask Liam Kerr what he thinks the alternative is. I do not know whether he knows this, but if the alternative is to continue to give people short sentences, we need to consider the fact that 35 per cent of those who receive short sentences end up back in custody. They must commit a pretty serious offence to end up there. The fewer than a third who do not complete their CPOs might not have attended. That is serious and it will be dealt with, but is it really as serious as the more than 35 per cent who end up back in jail? I do not think that the alternative is much better—in fact, it is much worse.

Peter Conlong can give you a bit more detail on the statistics and the modelling.

As members have heard, there was a reduction in the use of three-month sentences before the presumption against their use came in, so it is quite difficult to work out the exact impact of the presumption. There is therefore a limit to how much we can extrapolate from the experience to inform our views on a 12-month presumption.

We presented a few scenarios, to help partners to plan. One scenario was based on the fairly optimistic assumption of a 20 per cent reduction in the use of sentences of between three and 12 months, which roughly equates to a 7.5 per cent increase in the number of community sentences. That balances out the drop that we have seen in the past year, to some extent—

Forgive me for interrupting. What you are saying is really useful. For people who are watching, can you translate those percentages into numbers?

A 7.5 per cent increase would mean about 1,300 additional community sentences.

So, if the modelling is correct, 1,300 people who would have gone to prison will be on community sentences.

Decisions will be based on the individual circumstances, but a 20 per cent shift in sentencing would equate to 1,300 additional community sentences.

And that is 1,300 people with a better chance of rehabilitation than they had previously.

If you deny Professor Tata’s comment about the data—

No, no, that is incorrect. I have met Professor Tata and I am happy for you to seek clarification from him. I do not think that you are denying that all the research—almost bar none—shows that community sentences are more effective than short custodial sentences when it comes to rehabilitation. I think that to deny that would damage your credibility, and if you are doing so, I would happy to hear you do so on the record, because you would be isolated beyond your current isolation—

With respect, cabinet secretary, I am simply reflecting back what Professor Tata told the committee. He said:

“We have shockingly poor data”.—[Official Report, Justice Committee, 4 June 2019; c 27.]

I am simply repeating the evidence that the committee heard.

Okay. I appreciate that you guys are meant to be asking the questions, but I am really interested in knowing whether you think that community sentences are not more effective in terms of rehabilitation than short custodial sentences, because that is the inference that I take from what you are saying. If that is what you think, you are genuinely isolated on the issue.

I think that the issue is the use and resourcing of custodial sentences. Professor Tata said that people end up on a short-term sentence by default, for one reason or another, and we know that they have absolutely no access to rehabilitation services. Therefore, what should we do? We should direct resources at the people who find themselves on short-term sentences by default. That does not happen just now. Even just three months means that there can be continuous work with someone, day by day, for 12 weeks. As a former teacher, I can tell you that a huge amount can be done during that time to signpost someone and sort out issues. Over 12 months, even more can be done.

I hope that that answers the cabinet secretary’s question. We must move on.

I agree that there should be a presumption against sentences of less than 12 months, especially as a first step.

Cabinet secretary, you said that the UK Government is considering a ban. Did you consider such an approach at any stage before concluding that there should be a presumption against sentences of less than 12 months? Whether or not the UK Government goes through with a ban, will we need to consider such an approach in future?

Convener, I did not get a chance to respond to Liam Kerr. I am afraid that I must do. The evidence from the chief executive of the Scottish Prison Service was right: prison cannot do everything. Even if it could do everything, we know from the evidence and the data that community sentences are far more effective in rehabilitation than short custodial sentences. That is just undeniable.

We did not consider a ban, and I do not think that a ban is the right way to go, although I respect David Gauke as Secretary of State for Justice. In essence, the approach means that there is a ban and then a long list of exceptions to the ban, such as an exception for sexual offences. A ban very much restricts the judiciary, and the judiciary is best placed to decide who should be given a short custodial sentence and who should be diverted away from custody. A presumption against short custodial sentences is a much better approach.

I would like to ask about prisoner numbers. Given that we know that, for many people, prison is simply not effective and that Scotland has the highest imprisonment rate in western Europe, do you agree with the witnesses who said that any reduction in the use of short custodial sentences that the proposed presumption would result in would have a limited impact on overall prisoner numbers? What modelling has been done on what that might mean?

I think that that premise is correct—I would not take issue with it. Based on the projection that Peter Conlong mentioned—the 20 per cent reduction in the use of short sentences that is forecast—the reduction in the total prison population will probably be between 200 and 300. Of course that will help to ease some of the pressure that we have seen in recent months, but we are talking about a relatively modest decrease.

The reason for the presumption is not to ease the prison population, although that is a welcome side-effect. We think that it is the correct progressive reform to make to ensure that more people are rehabilitated and that there are fewer victims of crime as a result. That is the hope, and that is what the evidence tells us. There will be a modest reduction in the prison population.

The important point, which I stressed in various interviews that I did yesterday, is that there might well be a disproportionate effect—in a good way—on the female custodial population. We know that 90 per cent of women who receive a custodial sentence receive a sentence of a year or less.

That is crucial.

You said in your opening statement that you had allocated £9.5 million more to community justice services. Do you agree that it follows that the proposed presumption will not free up resources that might be diverted to other prison or community sentences? What will the financial effect be?

The question about how we prioritise the funding and what the profile of the spend will be in the future is a good one. In the short term, it is important that we have done what we have done, which is to protect the budget of more than £100 million for criminal justice social work for 2019-20. That includes an additional £9.5 million that will help local authorities with the alternatives to custody.

It is important to recognise that, nationally, the number of community payback orders has reduced by 8.3 per cent. We have increased the section 27 ring-fenced funding for criminal justice social work by 7.3 per cent and the number of CPOs has reduced by 8.3 per cent, so there is genuine confidence that the system can cope with the presumption. We will, of course, listen to each local authority on a case-by-case basis.

As far as the broader question of the transfer from the SPS to social work services over time is concerned, the member will completely understand that, in the short term, we need to keep our prisons running, so we must provide them with the necessary funding. In the long term, I would like our prisoner numbers to fall drastically. On the preventative side, as well as sending fewer people to prison, I would like us to invest a lot in rehabilitative measures so that we have a really dramatic reduction in our prison population. If such a significant reduction takes place—I am talking about a much larger reduction than the one that the presumption will result in—I can see no reason why, in the future, we would not reprofile spending, such that funding would move away from prisons to alternatives. However, I am afraid that we are not yet at that stage.

Do you agree that we are working towards a culture change in how we look at prison and how prison is used and a move towards the use of more effective methods in the community?

10:30  

We are in a unique position with the current profile of this Parliament and it is important that we do not waste it. Every political party in the Parliament—with the exception of the Conservatives—has a genuine understanding of the progressive reforms that we have to make to our punitive policy. That involves not just politicians; it involves the judiciary, the third sector, schools, early intervention, social work and many others. Rona Mackay’s reference to a culture change is right. There absolutely has to be a culture change, or a mindset change, in how we approach punitive policy. That high prison occupancy rate—the highest imprisonment rate in western Europe—is a stain on our conscience.

However, there is not a quick fix. I have spoken to previous Scottish Government and Scottish Executive justice ministers from different political parties to try to gain understanding from them. They have told me that the issues that I am talking about were issues that they grappled with when they were in my role. We have to take Parliament and the public with us on a radically different journey when it comes to our punitive policy.

In relation to Rona Mackay’s point about that culture shift, I would like to go back to some of the evidence that we heard last week from Dr Katrina Morrison of the Howard League Scotland, and Dr Sarah Armstrong, who said that if Scotland was an American state, its imprisonment rate would be comparable with Louisiana or Texas. During my line of questioning, Dr Armstrong said:

“I ... struggle with the paradox of why a country that is so committed to social welfare investment makes huge use of such an incredibly expensive resource as prison.”—[Official Report, Justice Committee, 4 June 2019; c 24.]

I would like to get your thoughts on the record on how we got here. Why do we have such a high imprisonment rate? What cultural element do we have in Scotland that does not exist in other European countries?

That is a good question. I will try to keep my answer brief; we could speak about the reasons why to quite an extent. There is not really one reason; there are a number of factors behind the high imprisonment rate. I could perhaps give you three, one of which would be judicial behaviour. We know that the punishment part of a life sentence has increased dramatically over the past decade. I do not know the exact figures, but I will give you an approximation from a decade ago. I look to Peter Conlong to keep me right, but I think that a decade ago the punishment part was approximately 12 or 13 years and now it is 18 to 19 years, so people are in prison for a lot longer for committing a similar crime. There is therefore less churn.

Another reason is no doubt the nature of the offences that come in front of us. Victims of rape and sexual offences, and even victims of historical sexual offences, have more confidence than they have ever had before about reporting them. That is a good thing. However, the nature of those offences means that they often have a custodial sentence attached to them. We are therefore seeing more and more people being imprisoned for sexual offences, rape, attempted rape and historical sexual offences.

Undoubtedly, the decisions that we choose to make also have an impact. The home detention curfew is one of the most obvious examples. At one point, we had 300 people out on HDC, then a review took place. The number of people out on HDC has been reduced to between 55 and 65 and there is a belief that perhaps the pendulum has swung too far in the other direction. We are not having the churn in people going out on HDC that we would have had previously.

Those are just three reasons; there are many more, but it all goes back to the fact that there is not a silver bullet. If we are going to have a radically different approach to our punitive policy, we have to bring in all the other stakeholders. I am working on doing some of that and some of my conversations with many people around this table have been effective in giving me good ideas on how to do that.

We have to take a radically different approach, because the evidence that the committee has received is absolutely right. For some reason, this policy is a punitive policy. The policy is at odds with the progressive country that we are rightly proud of being.

In giving evidence last week, Professor Tata told us that prison is still used to this day as some sort of “penal welfarism” when nothing else has worked. Do you agree with that assertion? We are talking about people with serious mental health problems, whose life might have collapsed around them. A number of different things might have happened to them and it gets to the stage in the system at which there is nowhere else for them to go, so prison is a last resort. Is that still the case?

I do not disagree with the general premise. As one academic described it to me, there is a very wide door into prison and a very narrow door out. It is pretty easy for people to end up in jail and, in some instances, very difficult for them to get out and to avoid the revolving door that brings them back in. The academic said that we have to turn that on its head: there must be a narrow door into prison and a very wide door out through rehabilitation. That is absolutely correct.

As the Justice Committee well knows, a large number of people in prison, especially among the female population in custody, have serious mental health problems and issues relating to substance abuse, homelessness and poverty and inequality. We have to think about how we do things in a radically different way, but there is no easy answer. It is hugely important that we take the public with us on this journey. As I have mentioned a few times in the committee, I get frustrated at the paradigm of hard justice versus soft justice, because that tries to simplify an issue that is actually very complex. If we are going to do this, we must ensure—regardless of who is justice secretary five, 10, 15 or 20 years down the line—that we take the public with us.

We have supplementaries from Daniel Johnson and Fulton MacGregor.

Is it not my main line of questioning?

I thought that you wanted to come in on the resourcing of custodial sentences.

I already asked a supplementary about sentencing on the back of your questions, convener—apologies if I have caused confusion.

That is fine. Does Fulton MacGregor want to come in?

I am in the same boat as Daniel Johnson.

What about Liam McArthur?

I very much welcome the measures that have been brought forward. As the cabinet secretary said, the evidence is overwhelming in relation to not only the rehabilitative opportunities through community-based measures but the move away from custodial sentences, which have such a disruptive effect on housing, employment, relationships and all the rest in a way that interferes with efforts to rehabilitate individuals.

As Daniel Johnson and other members mentioned, the issue of resourcing is key, and that has come through strongly in the evidence that the committee has heard. I was struck by James Maybee’s evidence last week. He said:

“the Scottish Government has made some resources available to assist criminal justice social work to prepare for the presumption against short-term sentences, but we are playing catch-up, and many of those resources are going into trying to maintain the status quo, rather than building new capacity.”

He went on to say:

“we are running to stand still with the demands on the service and the complexity of the work that we are doing. Very recently, Community Justice Scotland did some work that looked at the prison population on up to 12-month sentences, and the anticipation is that if some of those individuals come on to community sentences, they will bring much more complex needs, particularly for mental health support, as well as for other services.”—[Official Report, Justice Committee, 4 June 2019; c 2.]

The message from Social Work Scotland is that, yes, additional resources have been put in, but those are effectively plugging gaps and simply allowing the service to provide for those who are currently on community-based measures. If there is any sort of uplift in the number of community-based sentences that are issued—we hope that that will be the outcome of the new provisions—the resources are not in place to meet not only the expansion of need overall but the more complex needs of certain individuals who fall within that group.

I thank Liam McArthur for his, and his party’s, support for these progressive reforms. I know that, more generally, he has for a long time been an advocate for alternatives to custody as opposed to short sentences. I will try to give him some reassurance.

I take what James Maybee said, and what Social Work Scotland says, very seriously. I looked at his evidence in great detail—there were one or two things missing, which I will flag up to give Liam McArthur some reassurance.

James Maybee spoke mainly about the core grant that is given to Social Work Scotland. However, he did not refer to the additional investment from the offenders service budget line that we are putting on to the agenda. It is probably for us to look at budget lines and how they can be brought to the surface more clearly. I also return to my response to a previous question: the number of CPOs has fallen nationally by 8.3 per cent, but the funding has been protected. I like to think that there is resource, although that does not take away from the point that Liam McArthur and James Maybee made about those people potentially having very complex needs. We can have an open conversation with Social Work Scotland to evaluate some of the impact on it, and we will monitor that.

If those people were in prison, we would be spending NHS resource on tackling their complex mental health issues. It is important that we address those root issues to help them on their rehabilitative journey. That does not take away from what has been said.

The other nuance to throw in—I think that I have mentioned it—is that if the legislation on presumption is agreed to, we think that there will be a moderate impact on the number of those people who would previously have received a short sentence of 12 months or less, and who will now be given an alternative to custody, certainly in the short term. The system will not be overwhelmed.

I was interested to read in a Dundee City Council report of 3 June:

“Based on calculations of possible increases in the number of CPOs if PASS is extended, it is anticipated that the service is well placed to respond to any increase in structured community alternatives to custody.”

Some local authorities feel that they are in a good place. Others—for example Scottish Borders Council, in a recent inspection report—have highlighted challenges. I am not complacent about the issue and we are investing. I will work closely with Social Work Scotland to make sure that we can give it as many reassurances as possible, and, where necessary, help it in relation to resource.

We are moving on to resourcing of community sentences. Is Liam McArthur’s question on the current issue?

It is, but I am happy to come back to it later, if need be.

Is Liam Kerr’s question on a different issue?

I am keen to pick up on what the cabinet secretary said about our needing to take the public with us. I understand his point, but I want to explore the subject briefly. Last week, we heard from victims groups that say that if you put a criminal in prison, they are being punished and the public is being protected. If we instead put offenders in a system in which—as the cabinet secretary said earlier—a third of orders are never completed and a quarter have no work element, surely he can understand victims saying that that is not protecting the public or delivering punishment. Does the cabinet secretary recognise that?

I refer to the evidence that the committee took. You asked for very targeted evidence and submissions from victims groups, from academics and from professionals who work on the rehabilitative agenda. Of all the organisations that submitted evidence, only two are opposed to extension of the presumption against short sentences.

On orders that do not include unpaid work, some really good projects are included—

I do not dispute that. I am simply putting it to you that victims will look at what is going on and say that, in prison, there is an element of punishment and an element of public protection. Do you accept that victims would have a legitimate concern about those not being mirrored in the alternative system?

I was coming to exactly that point. It is incumbent on all of us—Government and Opposition—to present a true picture of the alternatives, and to give reassurances to the public and not engage in scaremongering about the alternatives.

10:45  

An example of an alternative that does not include unpaid work is the excellent Caledonian system. If Liam Kerr has not already visited it, I commend it to him. The project is successful in rehabilitating people who have committed domestic abuse offences, which is surely better for the victim than the offender being given a short sentence with no rehabilitative opportunity.

Liam Kerr will know this perfectly well, but I will say it to him anyway. We are talking about a presumption, so every sheriff and judge will still be able to give short sentences when they are needed. Domestic abuse cases are a case in point: a short sentence might often be given because protection of the victim is paramount. Extension of the presumption will not affect that.

As you have mentioned that issue, I have a question on it. Should domestic abuse cases be excluded from the presumption? Scottish Women’s Aid is critical of the plans. In its written submission, it says that it is

“not convinced that current practice around the use of community disposals is safe in cases of domestic abuse”.

It goes on to say that it considers that

“there is significant risk that some women and children will be endangered by extension of presumption in domestic abuse cases”,

and calls for domestic abuse cases to be exempted.

I hold Scottish Women’s Aid in the highest regard, but I do not agree with it on that. Such decisions should be at sheriffs’ discretion. There is a presumption, so of course they can send to prison, even for a short sentence, people who commit domestic abuse offences. We specifically waited for the Domestic Abuse (Scotland) Act 2018 to come into force, and for training of the judiciary and police officers to have taken place, before we brought the presumption order to Parliament and before—if it is agreed—bringing it into force. Under the 2018 act, non-harassment orders can be applied for.

I do not believe that we should create exemptions to the presumption. Courts are best placed to make decisions on sentencing. The vast majority of stakeholders, including the Scottish Sentencing Council, agree with that.

Victim Support Scotland has told the committee that

“communities have no faith in community sentencing. That is because ... it takes too long for someone to be found to be in breach”.

Is it wrong about that?

Did you quote Victim Support Scotland exactly? Did it say that it has “no faith”?

It said that

“communities have no faith in community sentencing. That is because ... it takes too long for someone to be found to be in breach”.—[Official Report, Justice Committee, 8 May 2018; c 39.]

As I said in answer to Liam Kerr, there is genuinely a job for us to do in continuing to increase CPO completion rates: we will absolutely do that. If we are to take the public with us, we should present to them the evidence that shows that we should, if we want fewer victims of crime, rehabilitate more offenders. If we rehabilitate offenders, there will, of course, be fewer victims of crime. There is no doubt—the evidence speaks for itself—that community alternatives are much more effective in the rehabilitative journey than short sentences are.

Victim Support and the victims organisations collaboration forum Scotland said in their written submissions that, right now, under the presumption against three-month sentences, protection of victims and their families is inadequate, but we are talking about extending that.

The police have also said that fewer registered sex offenders will be subject to notification requirements after the order comes into effect. That does not give victims or the community at large confidence that the presumption should go ahead.

Again, I disagree. If you were to say to the public that people who are given short sentences are more likely to commit another crime than those who are given community alternatives, people will say that we should deal with the root causes and make sure that the community alternatives are robust. I accept all that, but they would also say that they feel reassured by that and would prefer that approach to the revolving-door approach, with people going in and out of prison.

People who are convicted of sexual offences and sentenced to community protection orders that have offender supervision requirements are required to comply with the sex offender notification register for the duration of the offender supervision requirement. If an offender is still assessed as posing a significant risk of sexual harm to the public at the point at which their CPO ends, the police can apply for a sexual offences prevention order, which includes the same notification register requirements. We are also introducing legislation, in the form of the Management of Offenders (Scotland) Bill, that will allow electronic monitoring of SOPOs. I hope that that gives some reassurance in relation to sexual offences.

I genuinely think that victims organisations, which want to see fewer victims of crime, will understand that that aim will be helped by the presumption against short sentences.

I think that they will want to ensure, above all, that protection of victims is adequate.

I want to ask about a specific point that relates to the judiciary having faith in the community alternatives that we have spoken about. There is evidence that they have faith in them, but I want to ask about community payback orders and whether any work is going ahead to review any aspects of them.

The cabinet secretary knows that a community payback order needs to have in place a supervision requirement, apart from in orders involving stand-alone unpaid work. In a situation involving, for example, unpaid work with a mental health requirement, a supervision requirement needs to be in place. That creates a situation in which sentencers might have to set a requirement that they do not feel is appropriate—by which I mean a supervision requirement. That is the only situation in which they might have to do that. I assume that that would happen in only a small number of cases because, for example, they could not give unpaid work with a mental health requirement and a fine—they would need to add a supervision requirement to that. Has any thought been given to that aspect of community payback orders?

Fulton MacGregor has articulated the position fairly well. The unpaid work element has been successful. Some 7 million hours of unpaid work have been done in communities. Every member’s region or constituency will have been affected positively by that. Of course, it is for the judge to select what type of CPO a person should be given. As the member rightly articulated, supervision might well include specific requirements on treatment of substance abuse—alcohol or drugs—or treatment to tackle mental health issues. It could include a requirement to participate in a programme such as the Caledonian system, which deals with domestic abuse offenders.

CPOs are robust and credible community sentences. They are not about only payback to the community: some are about addressing root causes of offending behaviour.

I would like to add some context to what the convener was saying about breach. Some 75 per cent of CPOs in 2017-18 did not involve any breach applications, and the percentage of terminations is low, at consistently around 18 per cent.

I recognise that. In response to Liam Kerr, I said that we must and will do as much as we can to increase the completion rate for CPOs, but the non-completion rate is not an argument against them. The alternative is short prison sentences, but more than a third of offenders who are given them are reconvicted and given further custodial sentences. They end up back in jail for much more serious offences than breaching a CPO by failing to attend, for example. That is serious—but not as serious as the crimes that are committed by the 35 per cent who end up back in custody.

When someone breaches a CPO, prison is often the option that is taken because the court has run out of alternatives such as fines, fiscal fines and work programmes. As we heard last week from Lord Turnbull, there is sometimes no alternative to imposing a custodial sentence on someone who has refused to comply with a CPO. In such situations, resources and ensuring that people get help in prison could help; they get no such help, now.

If I heard you correctly, you said that people who breach a CPO are often given a custodial sentence. I am not convinced that that is correct. I may have misheard you. If a CPO is breached, the sheriff—it is, in general, a sheriff—decides what action to take from a range of actions, which could include custody.

That is accepted, but the court can run out of alternatives. When I asked Lord Turnbull whether people get a second chance, he said that they do and that they might get a third chance, but if there comes a point when the view is that the person is refusing to comply, the only option is a custodial sentence.

Sure. That is why we have a presumption and why we have the discretion of the independent judiciary. I do not argue with that, but there are alternatives.

As I said in response to Rona Mackay a moment ago, of those who are given short prison sentences of a year or less, 35 per cent end up back in jail for much more serious offences. It will be for members to vote on the presumption, but those who intend to vote against it should understand that they are voting for short sentences, for which the facts and figures about those who end up back in prison are much starker than they are for those who do not complete CPOs.

A number of members have touched on resourcing. It is important to understand the implications of the proposal, especially if we want it to succeed. You referred to increases and the total spend on community justice. I understand that the spend on community justice programmes is £13.6 million and on community justice services is £10.1 million, which comes to £23.7 million for delivering community justice programmes. For custodial sentences, we spend £35,293 per prisoner per year. What is the equivalent figure for those who are given non-custodial sentences? What spend do you expect per person sanctioned and for the total budget to deliver community sentences?

I might ask David Doris to elaborate on my answer. I do not have the exact figures in front of me, but we know that custody is much more expensive than community sentences. As I said in an answer to Rona Mackay, as we radically explore and examine our punitive policy and shape it in a different direction, we hope to reprofile some spend from custody to community alternatives.

11:00  

Our additional investment in criminal justice social work over the past few years is based partly on forecasting, which is not, of course, an exact science. If it turns out that the demand for community alternatives is greater than we have forecast for, I will have to have that conversation with criminal justice social work. Any decisions will be taken year to year as part of our spending review.

Perhaps I did not quite get to the nub of the question, but I am happy to explore it further.

The nub is that we will see a reduction in the spend on prisons only when we start to close institutions. Even if it is an average, the costs are largely fixed, and although we might see a shift, the likelihood is that, at the very least, there will be an interim period in which we will have to spend an increased sum on community sentences—on the 1,300 a year that we just heard about—while still spending the same amount on prisons. In that case, what will be the likely impact on the overall justice budget? How much more money will be spent in the interim or medium term on community sentences?

Finally—and I guess that this is the key point—the per prisoner figure is useful as a benchmark for what is actually being delivered, and it would be useful to have a similar benchmark for what is being delivered to people who are given community sentences. The question is not just about the overall cost impact but about how we are going to monitor the policy and how it is being delivered.

I will ask my colleagues to come back to Daniel Johnson on that figure via the convener. In any case, he is right to suggest that the benchmark figure might be quite helpful; indeed, it may well exist already, but—forgive me—I do not have it to hand.

Daniel Johnson is also right to point out that there will be a period in which we will have to keep our prisons well resourced while simultaneously investing greater amounts in community alternatives. That will have an impact on the justice budget, but that issue will be covered in the conversations that we have year to year as part of the spending review. Indeed, that is why the criminal justice social work budget has been increased, and it is part of the conversation that I have to have with the finance secretary every year. As Daniel Johnson might well know, there are other pressures on the Prison Service, but these are, as I have said, conversations for the spending review.

That said, it is my hope and desire that in the longer term we would be able to reprofile spending from prisons to community alternatives. However, Daniel Johnson is absolutely right: that would require a shift in the numbers that was so significant that we would be in the position—a position that, I have to say, I hope to be in—of closing, not building, prisons.

One of the other critical success factors is what happens in community sentences. There are essentially two reasons for the 35 per cent recidivism figure that you quoted for short sentences, the first of which is, as you have implied, the suitability of the prison setting for those who have been sentenced for a short period of time.

However, the other critical element is the lack of rehabilitation services for short-term prisoners. Do we not need to do much more to ensure that rehabilitation is an essential component of whatever sentence of whatever length of time that people receive, including community sentences? Indeed, instead of having such a presumption, would it not be more to the point to look at the sentence that is actually being handed down? In that respect, I would highlight the example in Northern Ireland of enhanced combination orders, in which judges are explicitly required to set out the rehabilitation and other services that might be needed, as well as the punishment element. Would such an approach, which gives much greater clarity, not be better? At the very least, should it not be a requirement to ensure that the proposed measure is successful?

I am not averse to looking at what other jurisdictions are doing and how they are doing it, and I am happy to look at any example that might help improve matters, particularly with regard to the rehabilitative journey that we want offenders to be on.

I will pick up a couple of points. The 35 per cent figure is not the recidivism figure; it is the figure for those who end up back in custody. My understanding is that many more will reoffend, but perhaps not end up back in custody.

The point about addressing complex needs and having associated budgets is hugely important, which is why the Government is so keen to work across portfolios. The health and justice collaboration improvement board is a key element of closer collaboration and cross-portfolio working, and the health secretary, her officials and I are involved in trying to deal with some of the root causes of crime.

With the preventative agenda, we aim to get to people before they commit an offence. However, if someone commits an offence, where is the best place to deal with that? Prison cannot be all things to all people. I respect the point about whether there should be a greater focus on rehabilitation in short sentences, and in an ideal world the answer would be yes. However, in Daniel Johnson’s previous question, he—rightly—asked me about the budget pressures that I already face. The realpolitik is that we have challenging budgets, and prison cannot do everything. That is not to say that we should not look at whether we can do rehabilitation better in prisons, and throughcare support is an important part of that, for example.

If we can deal with issues in the community—preferably before somebody offends, but even after they do—that would be more effective than perhaps dealing with them in prison.

I have been asking questions about how much money will be spent, because that is an important issue. I have also been asking about what the money will be spent on, because, again, that is important. The other point is how the money is made available. Time and again, people in the sector who deliver the programmes and those who are involved in sentencing tell us that one of the biggest factors holding back the use of community justice sentences is the absence of multiyear budgeting. Sentencers simply do not know from one year to the next what services will be available and what sentences they are able to hand out. Will you commit to changing that system, so that the consistency and certainty that sentencers need is available? Ultimately, is that not what is required to make the policy successful?

I say this not to take away from Daniel Johnson’s point, but we are often restricted because we get single-year budgets from Westminster. That is not to say that we cannot do multiyear budgets, because we are able to do that in some areas with some level of certainty.

Daniel Johnson touched on an important point that I do not think has been raised in the discussions so far. Third sector organisations, which we fund, are an important part of the puzzle and a vital component in helping us to deliver community alternatives. Although I will certainly give a commitment to explore the use of multiyear budgets, I am not able to give a commitment to enact them. I take seriously what the member says on this agenda—he makes a good point. My officials and I will explore multiyear budgets in relation to community sentences. Again, I will come back to member with an answer.

I return to our earlier exchange. In his evidence to the committee, James Maybee referred to several social work authorities receiving support from their local authority in addition to the core grant for criminal justice social work simply to maintain services at the current level. Therefore, there is a funding issue that needs to be looked at.

You talked about potentially easing some of the pressure on NHS delivery of mental health support to the prison population. Can you offer a reassurance that what is needed in terms of provision is a greater focus on the prison population, irrespective of what is happening with community-based measures? I would not like the resource there to be redirected to community-based measures. All the evidence suggests that we need more community-based measures for mental health support and more support in relation to mental health than is being provided for the prison population in the prison estate.

On Liam McArthur’s first point, I reiterate that I take what James Maybee and Social Work Scotland say seriously. I also reiterate that the increase in ring-fenced criminal justice social work funding is in addition to increases in revenue funding. Notwithstanding that, we will listen to what Social Work Scotland has to say. When the extension to the presumption comes into force, we will keep in close contact with SWS, local authorities and the Convention of Scottish Local Authorities to see the real-life impact of the policy and where there might be resourcing and budgetary implications.

Liam McArthur’s broader, more substantial point is well made. I had a frank conversation with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which came to look at a number of male and female custody units in our prison estate and which presented a challenge to the Government on how we provide mental health services in our prisons. The recent report, “Report on an expert review of the provision of mental health services for young people entering and in custody at HMP YOI Polmont”, from Her Majesty’s inspectorate of prisons for Scotland and Dr Helen Smith, also presents stark challenges to the Government and the NHS on how we provide mental health services in our prisons. There is a lot for us to consider, and I will make a statement to Parliament on the expert review next week.

However, I am open to looking at wider issues on how we deal with some of those complex health needs in the prison estate. It is not just about resourcing, although I appreciate that that is not what Liam McArthur was saying. Resourcing is an element, but issues such as information sharing are also important. Information sharing between various public bodies—or even within the NHS, between prison health workers and health boards—is not as good as it should be. There is a lot for us to do to address some of those complex needs in the prison population.

We have touched a little on the variation in the use so far of the presumption against sentences of three months or less. You might have seen the evidence that Lord Turnbull provided, in which it was clear that some areas were using more community alternatives than others. For example, Alloa seems to have had a lot of success. We discussed at length what might lie behind that, and we touched on trust and confidence in or awareness of the alternatives, for example. What are your views? Can more be done? In particular, when we move to a presumption against sentences of 12 months or less, we need to make sure not just that the disposals are there but that sheriffs are aware of them and that they are confident that they will work.

Judicial confidence, as well as resourcing, is absolutely key to making the policy a success. You are right to focus on that issue. Across the country, the confidence of sheriffs and judges can be patchy. That is why Community Justice Scotland is doing a power of work to instil a greater degree of confidence and reassurance in our judiciary.

11:15  

Community Justice Scotland often holds events, mainly for sheriffs but also for judges, at which they meet providers of community justice and community sentences almost in exhibition style and have very frank conversations. Some of the feedback from the judiciary has been that, when they give somebody an alternative to custody, the feedback loop is missing. In other words, they do not get feedback on whether that person has been successful in addressing some of the underlying issues and so on. Sheriffs tell us that if they had that feedback, they would be more predisposed to give those community alternatives.

We are working hard with Community Justice Scotland to bring everybody involved in community sentences up to a good standard. Some sheriffs are real advocates for community alternatives and we hope to persuade them to be ambassadors for community sentences. That will clearly depend on the work that Community Justice Scotland does to make sure that robust alternatives are in place across the country.

That brings me to my second question. The collection and analysis of the data on community sentences is really important, is it not? I know that the Scottish Government is working with Community Justice Scotland on that. Lessons on what works, evidence of that and the feedback about what actually happens will be really important in persuading the sceptics. Do you accept that there is an issue in building the case as we go forward and that we need to make sure that, as well as having the trailblazers, we have underpinning evidence that speaks for itself?

I accept that not everybody is at the level that we would like them to be at. There are examples of close collaboration between the judiciary and community sentence providers, but that is not standard practice throughout the country. We need to elevate everybody to that standard.

I visited a good project near Arbroath—the Glen Isla project—where they said that the sheriff is excellent. The project is for female offenders, and the sheriff often sends women there and visits it regularly. He has a good rapport and relationship with the staff and is really invested in the rehabilitative journey—if I can put it that way—of the offender. I am not sure whether I should repeat this, but I was told by the Glen Isla project that, during the sheriff’s annual leave, the replacement sheriff did not have the same understanding of the project and diverted many more women to custody. When the sheriff returned from leave, he was upset that that had happened. Building those relationships is key and is part of the work that we and Community Justice Scotland are doing.

That is an important point. A few projects have been named, such as the Tay project in Dundee. A sheriff who is familiar with a project and who knows about it is more likely to refer offenders to it. Lord Turnbull mentioned a potential training role for an organisation—the Judicial Council for Scotland, I think—in raising awareness of such projects and perhaps building those relationships. Would you encourage that?

It is probably the Judicial Institute for Scotland that he was referring to. I see a role for all those stakeholders. To be frank, it can sometimes be tricky from my side of the table. Members of the judiciary fiercely guard their independence, which I completely understand, and being told what to do by ministers and politicians does not land well with them.

It is fair to say that, if they felt that they could, the vast majority of sheriffs would give an alternative to custody as opposed to throwing people into jail. There is a power of work for us to do in that regard, and we are doing it. The Judicial Institute for Scotland and the Sheriffs Association will perhaps be part of that conversation, as will many others.

Some members of the committee had the opportunity to meet the Judicial Institute. They were very impressed with the work that it is doing to make all sheriffs aware of alternatives to custody and to talk about current issues that will improve the criminal justice system.

On the issue of resources and the question of impact assessments, I checked the various impact assessments that normally cover legislation and, primarily, they all say the same thing—that the proposal is an extension of existing policy. We have talked about judicial awareness of local options. Given that we do not have an islands impact assessment, what consideration is given to the particular features that are unique to the four island sheriff courts, and, indeed, the mainland sheriff courts that deal with residents who are from islands? For example, the Caledonian project—which is by no means unique—needs an optimum number of people to participate in a programme to make it effective. As a result, is there a danger that there is a reduced range of options for those who are convicted in island sheriff courts?

John Finnie raises a good point. Obviously, he knows about the island-proofing concept. However, he has a point about secondary legislation and doing things through orders, which I will—absolutely—take back to my officials.

I know that evidence was received from the Orkney and Shetland Islands councils, and we have to be aware of such nuances, which we also encounter in dealing with those who are in custody. There are nuances in island communities and issues around community alternatives, such as the stigma that is associated with them. Those nuances and issues are not necessarily unique to island communities—they can also exist in rural communities, and we have to be aware of and alert to them. However, having looked at the evidence from the island councils, I think that we will be able to meet the challenges of those nuances.

If there are particular conversations that John Finnie thinks that we need to have, I am all ears. He knows that I have a good relationship with our island councils from my previous portfolio. We do not want those in island communities to be disproportionately negatively affected; we want them to have the full range of opportunities for community sentences that anybody else would have.

I am grateful for that response.

On a number of occasions, the cabinet secretary has mentioned sums of money that have been allocated, using terms such as increases in “ring-fenced” funding. Is there sufficient flexibility within criminal justice social work budgets in island—and, indeed, rural—areas to facilitate the participation of individuals in disposals that involve groups?

It is my understanding that there is flexibility within that money. Although it is, as I said, ring fenced and protected, there is nonetheless flexibility within that. Of course, if island communities or councils feel that there are specific issues or particular challenges for their communities that they would like to raise with me, I will do my best to address them. I am absolutely open to that.

Throughout today, a lot of the case has been founded on the idea that community sentences are much more effective in preventing reoffending. However, last week, the committee heard that making a straight comparison of reoffending rates between those who are given a short custodial sentence and those who are given a community sentence can be somewhat misleading because of the difference in the extent of previous offending in the two groups. I am interested to know whether the cabinet secretary accepts that argument. If he does, is it not challenging to make the change without further analysis and understanding of what is going on?

It is not, as Mr Kerr describes it, an “idea”—research bears it out. As I have said to Mr Kerr and the convener, if they would like to present an alternative to that overwhelming research, they will find themselves really isolated. It is very much borne out by the evidence.

However, the point that Mr Kerr makes is correct and has been made by others. The profile of those individuals who are diverted away from custody might well be different from that of those who are given a custodial sentence—I accept that. My colleagues in the justice and analytical services division have looked at the issue, and it is possible to control for those differences. If that is done, the gap might well narrow. The figures show that those who are given a short custodial sentence are reconvicted nearly twice as often as those who are diverted away from custody; however, even if those factors are controlled for and the gap narrows, there is still a statistically significant difference in reconviction rates. The difference in the rates might be different, but there is still a statistically significant difference between the reconviction rate of those who are given a short custodial sentence and that of those who are given a community sentence.

What types of cases might attract custodial sentences of up to 12 months, given that, if we consider the possibility of a discount of a third of the sentence for an early plea, offences that attract a sentence of 18 months might be covered?

That would be for the judiciary to decide. I know that Lord Turnbull gave evidence to the effect that an early discount could bring an 18-month sentence down to one of 12 months, thereby bringing it within the ambit of the presumption. However, I go back to the point that it is just a presumption, which means that, even if the person falls within the category of having a short sentence of 12 months or less, it is up to the sheriff to decide whether they should go to jail. It will still be possible for the sheriff to send someone to jail if they think that that is the most appropriate place for them. For the more serious offences in that category, that might well be what a sheriff decides to do.

The sheriffs with whom I have engaged are very intelligent. You mentioned that you were impressed by the work that Sheriff Duff and his team at the Judicial Institute have done in training the judiciary. They will be very aware that the presumption has come into force, if that is what happens, and will bear that in mind. Lord Turnbull was sceptical on that point, but one would think that they would take that on board.

Ultimately, the answer to your question is that we are talking about a presumption against short custodial sentences, not a ban on them. Therefore, someone who is given any such sentence—whether it be for 12 months, 10 months or five months—could still be sent to jail. That will be up to the discretion of the judiciary.

Lord Turnbull told the committee:

“Offences that might be in that category could include causing death by careless driving; causing death while driving while disqualified; possession of indecent photographs of children and, possibly, the distribution of lower-category images; possession of offensive knives and weapons; assaults; and, perhaps, some drug supply charges, sexual offence charges and charges of multiple housebreaking.”—[Official Report, Justice Committee, 4 June 2019; c 40.]

By any stretch of the imagination, those are very serious offences, which will be covered by the presumption.

That being the case, do you consider that the risk assessment is fit for purpose? Last week, James Maybee of Social Work Scotland told us that its risk assessment relies only on what the offender tells the social worker, not the evidence in court.

Yes, I think that our risk assessment is solid and robust. In the justice portfolio, it will never be possible to reduce the risk to zero. Even when somebody is in custody, they can commit crimes, including, unfortunately, the most heinous crimes—people have committed sexual crimes and murder within the prison estate. Regardless of whether someone is in custody, it is not possible to reduce the risk of their committing a crime to zero.

11:30  

I will make two points on the list of offences and your quote from Lord Turnbull on it. First, discretion lies with the sheriff. The individual sheriffs and judges have the discretion to say whether the seriousness of the offence merits a custodial sentence or a community alternative, regardless of whether it falls into the presumption against sentences of less than 12 months. Secondly, I, as the justice secretary, and the convener of the committee have to believe in people’s ability to rehabilitate. I have to believe that people have that ability regardless of the crime and—this is perhaps the controversial bit—whether they have committed the most heinous of crimes. Some people will, of course, be beyond that, but I have to believe that the overwhelming majority can rehabilitate.

The convener is right to call the offences on the list serious offences, but, even if they have committed those offences, I have to believe—and I do believe—that people have the ability to rehabilitate. If I believe that—as I do—I have to ask myself what the evidence demonstrates is the most effective way of rehabilitating somebody. Is it a short sentence or is it a community alternative that addresses the root causes? As I have said throughout this meeting, it is undoubtedly community alternatives. Judicial discretion is important, but we cannot take away from the fact that the rehabilitative impact of community sentences is far greater than that of short sentences.

Cabinet secretary, we have to pass legislation that protects the public. It has been your choice to extend the presumption to 12 months. The Law Society has asked why it should not be six or nine months. Of course, we all believe in rehabilitation, but, as the Wise Group has told us time and again, rehabilitation has to be properly resourced, and it has not been for the three-month presumption. There must be a question about how extending the presumption to 12 months is a sensible way forward.

I do not agree that rehabilitation under the three-month presumption has not been properly resourced.

I thought that I said this in an earlier answer, but perhaps I did not. The 12-month period was chosen for good and legitimate reasons, to avoid the issues around uptariffing because of summary sentencing limits.

You quoted Lord Turnbull, and it is also worth mentioning that Lord Turnbull said that community sentences are recognised as robust and not a soft option. Those are important points to put on the record.

I do not think that anyone is disputing that, cabinet secretary, but the situation is as I have outlined.

The Official Report will show that, immediately after reading out the list, Lord Turnbull went on to say that he had faith and confidence that, if the crime was of a serious enough nature to merit a custodial sentence, that is what would be given. It is important to put that on the record for completeness.

That concludes our questions.

Item 3 is formal consideration of the motion on the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and had no comments on it.

The motion will be moved, with an opportunity for a formal debate if that is necessary.

Motion moved,

That the Justice Committee recommends that the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019 [draft] be approved.—[Humza Yousaf]

As no members wish to speak, I reiterate what I have said earlier. I am not convinced that this is a sensible way forward for protecting the public, and, for that reason, I am not in favour of it.

Cabinet secretary, do you wish to wind up?

I will say only that I am disappointed with that, convener, but I am pleased that the evidence is robust. I hope that the order is passed so that more people can be rehabilitated and there will be fewer victims of crime.

The question is, that motion S5M-17438, in the name of Humza Yousaf, be agreed to. Are we all agreed?

Members: No.

There will be a division.

For

Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)

Against

Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)

The result of the division is: For 7, Against 2, Abstentions 0.

Motion agreed to.

Next week, we will consider the final report on the basis of today’s result.

I thank the cabinet secretary and his officials for attending and suspend the meeting for a five-minute comfort break.

11:35 Meeting suspended.  

11:41 On resuming—