Justice 1 Committee, 19 Nov 2003

Meeting date: Wednesday, November 19, 2003

Official Report 242KB pdf

---

Sentencing and Early Release from Prison

Good morning, everyone, and welcome to the 13th meeting of the Justice 1 Committee in the second session. I ask members to do the usual and switch off their mobile phones and anything else that might interrupt the meeting. There are no apologies, as everyone is here.

Item 1 concerns sentencing and early release from prison. I remind members that the purpose of this agenda item is to gather information to assist us in considering agenda item 4, which is to decide whether we wish to proceed with an inquiry into sentencing.

I welcome Professor Neil Hutton from the University of Strathclyde's law school and thank him for coming along. I also congratulate him on his appointment to the sentencing commission.

Thank you very much.

We have a number of questions and I do not know whether you want to make an introductory statement.

Not particularly. I am happy to take questions from the committee.

In a recent presentation to the committee, you highlighted the lack of confidence in sentencing. Has that lack of confidence contributed to a more punitive culture in sentencing?

The evidence on a punitive culture is difficult, because such a culture seems to have crossed all western jurisdictions. It is beginning to be felt in western European jurisdictions that, up till now, have maintained low prison populations—those prison populations are starting to rise. There seems to be a more punitive mood throughout western jurisdictions. That is not necessarily caused by a lack of confidence in criminal justice and judges, but it is part of the phenomenon.

How could the lack of confidence be addressed? Does automatic early release contribute to the lack of confidence?

One thing that the criminal justice system could do is provide people with more information. Evidence suggests that people have little knowledge of the system and of what happens in prisons or courts. Nevertheless, they have strongly held views and base what they say not on fact but on emotions and opinion.

There is a great deal that the criminal justice system could do to tell people what goes on and to give people more positive messages about what happens. The newspapers tend to focus on the more negative things—that is probably their job—but the criminal justice system could do a lot more to tell people what works and what is effective and good about the court system.

So is it a matter of more information or would the ending of automatic early release help in that respect?

I think that you are talking about truth in sentencing.

Yes, I am talking about honesty in sentencing.

The short answer, which I know is not helpful, is that I am not sure whether the ending of early release would make a difference. People do not know the reasons for early release and what happens after someone has been released early. People have a knee-jerk reaction; they say that, if someone was sentenced to two years and spends only one year in prison, there must be something wrong with the system. The fact is that almost all jurisdictions have an early-release provision. There are good reasons for early release, but it would be helpful if those reasons were explained to people more carefully

Would it help if early release was earned through good behaviour and rehabilitation programmes as opposed to being granted automatically?

I do not know of any evidence on that, but what you say sounds plausible. If prisoners were able to take positive steps to earn early release, that could be one way of presenting the system more positively to the public. You might be right about that, but I do not have any evidence on the issue.

My question concerns public confidence, too. You mentioned that, in western Europe, we seem to be becoming more punitive about locking people up. What external factors have led to that change? If that approach is being taken across western Europe, surely a number of external factors are coming into play to lead us down the route of becoming more punitive about the length of time that people spend in jail. Will we ever get to the bottom of addressing the problem in Scotland without knowing what those factors are? Rather than tinkering with the present system, should we not go right back, look at the factors at play and address them? Surely we should do that before we change anything in the present system.

I am sure that the committee has heard the evidence from other small jurisdictions, such as Finland. Over a period of 30 years, those jurisdictions were extremely successful at developing policies that actively reduced their prison populations. I understand that the prison population is starting to creep up again, but it is doing so from a level that is about half our rate of imprisonment.

Even although we live in a world in which people are becoming more anxious and feeling less secure in general, small jurisdictions still have the capacity to do something. People are anxious about terrorist bombings, for example, or the movement of an industry from one country to another that leaves people jobless. There is some evidence that people focus those sorts of general anxiety on crime. People talk about the need to do something about crime because terrorism or the movement of money across nations is not something that we can do much about. It may not be possible to do much about people's general anxieties, but that does not mean to say that we cannot do something about crime—something that will make people feel more secure.

If we wanted to study a jurisdiction to find out which country has effective sentencing, which jurisdiction would you suggest? Would you suggest Finland?

Effective sentencing in Finland and Sweden means something a little different from what we might think of as effective sentencing. Their jurisdictions do not expect that criminal justice systems and punishment in particular can solve society's social problems. Finland and Sweden have relatively modest expectations of the crime reduction potential of punishment, for example. They have community programmes, but they tend not to evaluate them thoroughly, as they do not expect them to have a marked effect on reducing offending behaviour.

The issue seems to be cultural. Finland and Sweden have fairly extensive social welfare programmes and they approach crime from a broad social, preventive point of view. They regard the criminal justice system as something that punishes, marks society's disapproval and perhaps offers people the opportunity to change their lives and stop offending, but that does not make that system the cornerstone of their approach. Some people might argue that such an approach is an effective approach to criminal justice, although it is not quite effective sentencing, to use the words that you used.

If consistency in sentencing could be achieved, would that lead to greater public confidence in the criminal justice system?

One complaint that members of the public have about sentencing is that, in their view, it is inconsistent and all over the place. I think that that complaint is largely based on newspaper reports of sentences that appear to be out of line, at least from the information that is given in the newspapers. The public have a perception that sentencers are inconsistent. I hope that any steps that can be taken to encourage sentencers to pay more attention to consistency and make more efforts to be consistent will have some effect on improving public confidence.

Members probably know that the High Court of Justiciary has a sentencing information system, in whose production I was involved. The system seems to have a great potential to carry a message to the public that High Court judges are trying to be consistent with what they have previously done and are trying to share information about sentencing by all judges so that they can try to be consistent within that pattern. Modern technology is being used, which shows judges to be in touch and up to date. The public tend to think of judges as being out of date and old fashioned. If the benefits of the system were trumpeted so that they were more widely known, that might improve public confidence. Consistency is an important issue.

Have you considered what your input might be to the sentencing commission, of which you will be a member? More specifically, should the commission focus on effective sentencing rather than on issues to do with bail or remand, which I understand are the two key areas that the commission will consider to start off with?

The commission has a broad remit. It will consider bail and remand, parole and early release, fines, consistency and effectiveness. I understand that we will deal with those five areas in turn and that bail and remand will be the first area that we will consider.

The agenda seems to be very large for two years. Any one area in itself would be enough. Most sentencing commissions that have been established in other jurisdictions have started off from the big picture, considered what the aims of punishment and the system should be and then thought about how those aims might be realised and how more consistency in sentencing could be achieved, for example. I am not sure that the commission will do that.

You asked about my role. I will certainly try to encourage the commission to consider the big picture. I would particularly like it to think about how to achieve more consistency in sentencing.

The other issue about which I am particularly concerned and which was reflected in last week's debate in the Parliament on alternatives to custody is short prison sentences. There seems to be an emerging consensus from political leaders as well as practitioners in the criminal justice system that we make excessive use of short prison sentences. The Executive has said that it will introduce supervised attendance orders instead of custody for people who do not pay their fines and the sentencing commission will consider remand.

Prisoners on remand and fine defaulters form two large parts of the short-term prison population, but we do not know much about the rest of that population. I am interested in getting the commission to examine that. Who is getting sent to prison to serve short sentences and for what kind of cases are short sentences being imposed? If we had data on that, that might encourage a more open public debate about the issue and we might even be able to persuade the judiciary to get involved.

I would like the judiciary to be more involved in the debate about sentencing in Scotland. I know that that is a difficult issue, given the independence of the judiciary, but in other jurisdictions it is possible to engage the judges in more public debate. I really hope that we can find a mechanism for that and that the sentencing commission will enable it to happen.

That was helpful. In your view, are bail and remand strictly part of the sentencing regime?

I would not have thought so. The issue was not the first thing that came to mind when someone said that there was going to be a sentencing commission, although judges—and the police—make decisions about bail and remand. However, the issue is important, because our remand population is high—something like 50 per cent of prisoners in Barlinnie are on remand. The issue is difficult and complex, but it is well worth investigating.

You said that sentencing commissions in other jurisdictions started with the big picture. What other jurisdictions have had sentencing commissions and where do you think that they have been used most successfully?

Many states in the United States have had sentencing commissions. They are established often as permanent bodies and their job is usually to draw up and administer sentencing guidelines—not a phrase that we are used to using in Scotland. In the mid-1980s, Canada set up a sentencing commission to review sentencing, which was more like a committee of inquiry. It produced what I thought was a helpful document. Although no legislation resulted from the inquiry, the document is regarded widely as a useful review of sentencing.

The Halliday report, "Making Punishments Work: Review of the Sentencing Framework for England and Wales", which was produced a couple of years ago, was a comprehensive review, some of whose recommendations have been incorporated into the Criminal Justice Bill. I am not recommending the Criminal Justice Bill, because I have strong reservations about the way in which England and Wales are going about their sentencing, but the Halliday document is useful in providing a big picture of all aspects of the aims and purposes of punishment. I am not sure whether Scotland needs to produce such a review from scratch. We could probably borrow from work in other jurisdictions and from Halliday, from which we could learn a lot.

I am glad that you mentioned the situation in England and Wales, because I was going to ask you about the difference between what is happening with the sentencing commission in Scotland, with the justice community's view of guidelines, and the establishment of a sentencing guidelines council in England. Some of the comments that we have heard suggest that England is going down a slightly more prescriptive road. Will you expand on that and give us your view on the differences between the two jurisdictions?

As you know, England and Wales have always had guideline judgments, which are issued by the Court of Appeal; the magistrates courts have their own guidelines. The Court of Appeal in England and Wales has been very active in issuing guideline judgments, which tend to be for the more serious offences at the top end of the scale.

In recent years, the Court of Appeal has been assisted in doing that by the Sentencing Advisory Panel, which is a body made up of judges and experts. The panel has a budget, research officers and an executive. It is well resourced and can produce impressive supporting evidence to help the Court of Appeal in developing guideline judgments. The panel will advise the sentencing guidelines council. This time last year, there was a rather controversial judgment on burglary, for example.

The judgments are very detailed. They consider the impact of previous convictions and how those should affect the sentence, they consider data on the prevalence of burglary and they consider past sentencing practice. They collect a lot of information so that the court is well informed when it makes its guideline judgment. That is a useful approach to take. England and Wales have always had that tradition of having guidelines.

In Scotland, as far as I am aware, there is only one guideline judgment—on the crime of plagium—which was passed by Lord Hope when he was Lord President a number of years ago. The appeal court, despite having the power to pass guideline judgments, has never done so. Scotland has no tradition of guidance, or guidelines, for sentencing—certainly nothing that is done in public.

My view, which is fairly well known, is that it is time that we reviewed that. I would like judges to do that themselves. The evidence from around the world suggests that sentencing reform is always most effective when judges are very much involved in the reform process. If reforms are imposed from outside on unwilling judges, it is much more difficult to get the system to work effectively. I would like judges to be closely involved in any kind of guidance for sentencing—that is something that we should be considering.

I am interested to hear your view that it would be good to go down the road of issuing guidance, but—this may lead back to the consistency arguments that we discussed—I am concerned that the freedom, if you like, that judges have to judge is lost if we effectively provide a grid that says that so much of this and so much of that equals this sentence. The room for flexibility and manoeuvre would be lost. I am sure that any judge would say that every case is different. Will you expand on that, because I have concerns about heading down that road?

I am no great supporter of numerical guidelines either. I have deliberately used the word "guidance" rather than "guidelines" to try to make that distinction. Some numerical guideline systems leave judges with very broad discretion because, if you like, the boxes are very broad—within the two levels of penalty prescribed in the box, there is quite a lot of room for variation. Other systems are much narrower.

The approach in England and Wales is a kind of narrative guidance given to judges. The guidance says that the going rate for such an offence is X years and gives examples of the kinds of things that would make the offence less serious and the things that would make it more serious. It suggests the number of years that a judge should consider adding on. It leaves discretion entirely with judges; it is just an attempt to give a more explicit statement of the boundaries within which discretion should be pursued. Such a narrative approach towards defining consistency is much more likely to meet the support of judges, as it allows them to take into account the facts of each individual case, some of which can be very difficult or special.

In response to a question from the convener, you said that the sentencing information system has great potential to promote consistency in sentencing. Is it working now to make sentencing more consistent? Do judges use it and, if so, do they use it sufficiently?

The system was implemented last year in the High Court, but unfortunately no information is available about whether judges use it and find it helpful. It is probably too early for us to be able to say whether it has improved consistency in sentencing. Given that about 1,000 cases pass through the court every year, we would have to wait for a few years before evaluating the system.

What is your impression of how the system is working?

I do not have an impression, because I no longer have access to the system. Data are not being produced; the judges run the system.

Hence your earlier answer that the system has great potential.

Yes, I think that it does.

The Scottish Executive recently said that it would not rule out extending the sentencing information system into sheriff courts. That would obviously require a great deal of planning and consultation. Could the system function effectively in the sheriff courts?

There is significant potential for a sentencing information system in the sheriff courts. More research and consultation would be needed to determine exactly what form the system would take. We would not simply transfer the existing system into the sheriff courts, which are very different from the High Court in terms of the numbers and types of cases that they deal with. Most High Court sentences are custodial, whereas the sheriff courts use a wider range of penalties. Careful thought would have to be given to how the system might display community and prison sentences. However, none of those issues would be impossible or tremendously costly to resolve.

The system could be tailored to meet the needs of sheriff courts. That would depend on consultation with sheriffs to establish what they would find helpful and on the involvement of sheriffs in the system's design. For example, the data that are available from the Scottish Criminal Record Office could quite easily be transferred to a sentencing information system. Those data do not contain enough detail to be tremendously helpful, but if sheriffs were to add guidance, so that the SIS showed both the patterns of sentencing and sheriffs' guidance about the going rates for particular types of offence, the system might be very useful.

Such an approach would demonstrate to the public that sheriffs are taking consistency seriously, which is very important. Currently, when sheriffs are the subject of public criticism for passing maverick sentences, they cannot respond, but the introduction of a sentencing information system would enable them to do so.

In your view, sheriffs would be central to any system that was developed for the sheriff courts. Were judges involved in the development of the system for the High Court?

Yes. The main reason why the system was finally implemented and has been successful was that it had judicial support from the start. A team of judges worked intensively with researchers, especially at the beginning of the project. Attempts to develop sentencing information systems in Canada have failed, mainly because of a lack of judicial involvement and commitment. We know of only one other such system, which operates in New South Wales.

Is the system in New South Wales working?

Care is taken not to present detailed evaluations of the system, but people are very positive about it. The sentencing statistics database—which is what we have developed in Scotland—is the central part of the system, but a lot of other pieces of information are attached to it, such as reported cases, appeal judgments, legislation and other useful resources for judges. The number of log-ins to the system shows that there are impressive rates of usage, but we do not know what bit of the system judges are consulting. It might be that the statistics part is not consulted as frequently as others. However, when judges become experienced in and confident about sentencing after a number of years, they probably know the going rate and need to refer to the system only from time to time instead of every day. The information system is helpful for new judges.

How long has that system been in operation in New South Wales? Did it inform the construction of the SIS in Scotland?

In about 1991, when he was Lord Justice Clerk, Lord Ross saw the New South Wales system in operation, by which time it had been operating for two or three years. He came back to Scotland and persuaded the Scottish Office to fund research into the feasibility of setting up such a system. Things developed from that point.

My point brings us back to guidance and deadlines and relates to the discussion on the SIS that we have just had and the previous question that I asked you. Do you feel that the SIS contains enough detail for judges to use it as effectively and as properly as it was originally intended? I do not know what detail the system goes into, but a system that simply consists of a list saying that one case got four years and another got five years does not seem very effective or useful, while a system that is jam-packed with background data will be overloaded and equally unusable. How useful have judges found the system? I understand that the question is a difficult one.

I do not know how useful judges find the system, because they will not tell me.

When 13 or 14 judges used the system during its initial implementation phase, we asked them how useful it was and whether they found it helpful. We received positive results from those judges. Although that information is now a few years old, it suggested that they found the system useful for seeing patterns of sentencing. Moreover, when they were trying an unusual case, they could find out whether there had been a similar case and what happened. Because the system contains appeal court data, judges could also find out what appeal court judgments had been made in an area that they were about to sentence in.

The system also provides an opportunity for judges to write a short explanation of their sentence, although that feature was introduced latterly and has not really been evaluated. Judges felt that such a feature is helpful because it provides the sort of picture of an individual case that judges are so keen on against the background of the data. For example, judges could explain why a particular sentence appeared to be lenient or could say why they gave only four instead of six years in certain circumstances. As a result, such a feature would allow judges to have an electronic conversation about sentencing.

For all those reasons, I feel that the system helps judges to pursue consistency. Your first point was very well made. On the one hand, a system could contain such general data that it would not be very useful; on the other, it could contain such detailed information that it would not be very useful either. The aim of the system was to strike a balance. Obviously, I think that we did a pretty good job, but that is for other people to judge. Of course, as far as pursuing consistency is concerned, the onus is on judges to want to do that and to take that matter seriously. It is their responsibility.

Much of the discussion has centred on inconsistency in sentencing. Apart from what we read in the tabloids, has any credible research been carried out into sentencing in Scotland that demonstrates that we have a clear problem in that respect?

There are two sources of information. First, the Executive publishes annual statistics on patterns of sentencing in the courts in its costs and sentencing profiles series. However, those data are of modest use, because they do not have controls for the seriousness of the case load in each court. For example, it does not help us much to know that an average fine is £123 in Banff and £172 in Dundee if we do not know whether the case load in each area is broadly comparable. However, within those limitations, the statistics demonstrate quite considerable variations of sentencing.

The only other research that I know about is a small study that a colleague and I did approximately 10 years ago, which examined the patterns of custodial sentencing of 10 sheriffs. It showed that two of the 10 sheriffs were more severe sentencers than their colleagues, who were broadly in line with one another for all offences. There was a broad element of consistency in the sentencing, but two people were a bit out of line. That coincided with anecdotal information from the local bar about who were the tough guys in town.

I know that that is a problem in some jurisdictions. People who work in the courts tell anecdotes about sheriff shopping and people not going in front of a particular sheriff because he is seen as being more serious. However, we do not have any data other than that small research project that was done in one jurisdiction several years ago.

I wonder whether we should have that kind of data before we rush ahead and start changing things. Perhaps the sentencing commission could consider that in some detail. Given that England has much more in the way of guidance and guidelines for sentencers, has any research been done there that suggests that they are more consistent?

The short answer is no. As far as I am aware, there has been no systematic research into whether judges follow the guidelines passed by the Court of Appeal.

The previous Justice 1 Committee expressed concern about the rising number of women being sent to prison. There seem to be variations in the sentences given to men and women. Will you outline how that could be addressed?

A relatively small number of women are sent to prison in Scotland; we are talking about fewer than 200. That is far too many, but it is still a relatively small number so it would be quite easy to collect fairly detailed data about the patterns of sentencing for women offenders. That would be helpful when working out what to do about the problem.

I understand that a considerable proportion of the women in Cornton Vale are there for fine default and that seems to be easily avoidable. I know that the Executive has recently said that supervised attendance orders will be used, which will remove custody as an alternative for fine default. That might have a significant impact on the women's prison population.

I also understand that the number of dangerous women in Scotland is tiny, so we do not need one prison to hold the number of women who represent a danger to the public. The women in Cornton Vale are there for a whole range of other reasons. Perhaps the provision of more imaginative community-based alternatives will help. The time-out centre in Glasgow is an excellent idea, which I hope will be used more widely throughout Scotland and not just in Glasgow.

It is good to hear that, especially because Cornton Vale is crowded and there are women in other prisons as well. That is something that can be addressed.

With some strong political leadership, we can deal with that problem, although it has been some years since the report "Women Offenders—A Safer Way" was published.

Your comment about the Executive's pilot projects on the mandatory use of supervised attendance orders seemed to suggest that the orders would be very effective in addressing the issue of the number of fine defaulters who are in custody. Will you expand on that?

As I understand it, if people repeatedly do not pay fines, despite means inquiry reports, reviews of their payment schedules and being given further opportunities to pay, they end up in prison. There might be people who do not want to or will not pay a fine even if they can afford to and who are happy to take the alternative. There are also probably a lot of people who cannot pay the fine or who find it difficult to do so. Having a non-custodial and non-financial penalty that could be imposed on people offers a great opportunity to reduce the rate of imprisonment of people who do not pay their fines.

I am afraid that I do not have to hand the figures on fine default; however, most people pay their fines. Defaulters constitute a relatively small number. The issue is how we manage fine defaulting, and we could probably learn from private sector debt management how to manage the non-payment of fines rather than regard it as an issue purely of enforcement. I believe that there has to be an ultimate sanction for people who will not pay the fine and will not observe the orders of the court, but we could do much more than we are doing at present to put off the moment when custody is inevitable.

I am glad that you have raised that point. I am interested in the idea of people who are just not going to pay a fine. You mentioned a particular group that would rather take the short, sharp custody option than pay the fine, even if they could afford to pay. What makes you or anybody else think that those people would comply with the supervised attendance orders rather than just ignore those as well and do what they wanted to do in the first place, which is spend one or two nights in prison?

As I said, if people are recalcitrant and will not observe the order of the court, prison is the only option. However, I am suggesting that we could be more patient than we are at the moment and process people for longer—in other words, postpone the day when they have to be sent to prison—in the hope that they will comply with supervised attendance orders, pay back their fine or do something else in the meantime. We should do that rather than enforce a prison sentence immediately. It is a matter of timing.

Do you think that unit fines have a role to play in dealing with fine defaulters? You mentioned people who could not afford to pay. If fines were based on income, the financial amount would vary enormously, but it would have the same impact on the individual. Do you think that people would be more likely to pay in such circumstances?

Unit fines are a good idea. They have operated effectively in many continental jurisdictions for many years. The system was introduced in England and Wales in 1991, but because it was badly implemented and badly thought out, with badly written legislation, it was ditched. Some middle-class person got fined £800 for throwing a crisp packet out of the window and that killed it. That was due to bad drafting.

It seems logical that people should be fined in proportion to their income. It is equal impact that we are looking for in the punishment, and I am in favour of unit fines. I see no reason why we should not be able to design a unit fine system that would, I hope, make a difference to fine defaulting. It is unavoidable that there will still be people who do not pay their fines. Nonetheless, a unit fine system would go some way towards reducing that.

When fine defaulters wilfully refuse to pay although they have the means to do so, would you favour civil diligence and arresting their wages, for example, or taking the fine out of their benefits, rather than having them serve a community-based alternative?

There is some scope to look in that direction. The difficulty is in designing a scheme that distinguishes between people who are being wilful and people who simply cannot afford to pay. I would be reluctant for us to have a scheme that takes benefits away. Benefits are designed to be a minimal level of money for people to live on, and taking money away from benefit is likely to be ineffective. It might even cause criminality if benefits were taken away from people who would have to find somewhere else to get the money from.

If people's means and outgoings are assessed for supervised attendance orders, as they have been in the pilot scheme in Hamilton, it becomes clear which people do not have the means to pay—the search is then for an alternative measure to address their offending behaviour, perhaps in responding to their alcohol problems or money management difficulties—and which people have the means to pay. If that were put in place, as a belt-and-braces approach, would civil diligence and recovery of money from benefits be a way forward in order to keep the places in the community, which are at a premium, for the people who will get more benefit from them as they are willing to participate in them?

There might be scope for that, but designing such a system would be a difficult exercise. I still think that it is difficult to distinguish between people who refuse wilfully to pay and people who simply find it difficult to do so.

I commend the pilot scheme in Hamilton.

I turn to the question of custody only for those who are a danger to the public, which was suggested in the previous Justice 1 Committee's report on alternatives to custody and by agencies such as Safeguarding Communities-Reducing Offending. I struggle with the idea that we should lock up only those who are a danger to the public, because I am not sure what we mean by that. In the debate last week on alternatives to custody, I mentioned crimes of dishonesty. A person might not be a danger to the public, but they might not be holding back in that they have been convicted for housebreaking on 30 or 35 occasions. Removing such offenders from the community has a direct impact, even though they might not be a danger to the public. Do you share that view, and if so, why?

The issue of recidivist offenders, which is what people are concerned about, is difficult. It is a question of degree. When has someone committed house burglary so many times that we feel that there is no alternative but to send them to prison? How many chances do they get and what other avenues can we explore before we send them to prison? At the moment there is no real debate about that, because judges make that decision and we do not really know how many chances people are supposed to get or how often they can commit offences without going to prison. Many of those offenders will be stealing because they have a serious drugs problem. We can try to address the problem through drugs courts and drug treatment and testing orders. There is great scope for developing those options, because if we can address the reason why people are stealing, we can address and perhaps reduce their offending behaviour, such as housebreaking.

My view more generally is that prison is not effective; it is expensive and it should be used for protecting the public. Even people who are an extreme nuisance for committing property offences persistently can be managed and punished in the community more effectively and more cheaply than they can by sending them to prison. Prison is not the only form of punishment: community sanctions deprive people of liberty and impose restrictions on them. The problem is that we think that prison is a punishment and everything else is not. Community sanctions are a punishment and they are more effective and cheaper. If I thought that sending someone to prison would stop them reoffending, I would be quite happy to do so, but it does not stop them.

You said that prison is ineffective. If a group of people are caught housebreaking repeatedly in an area, locking them up removes them so they cannot commit crime. Surely that is effective. I do not disagree with what you said about community sentences. If there is a consensus about community sentencing it could be used more. The big job is building confidence among the judiciary in community sentencing. I do not agree that prison is completely ineffective in the scenario that I outlined.

I cannot dispute that locking up a persistent housebreaker will give a small section of the community respite for the time that that person is locked up. It is clear that imprisoning that person will be effective, in that it will incapacitate them, but imprisonment will have no impact at all on burglary rates generally, because only a tiny proportion of the people who commit such offences end up in court and only a small proportion of them go to prison. It is misleading to suggest to the public that by imprisoning burglars you are reducing the amount of burglary in the community, because you are doing that only by a very tiny amount, and at considerable cost.

Yes, I can see that. I am only trying to address the question whether we should hold people in custody only if they are a danger to the public.

In the last week or two, we have heard from the chief inspector of prisons, and last week we had a debate in the chamber on alternatives to custody, during which we heard about the large number of people in our prisons. What would be the most effective way of changing sentencing practices in Scotland in order to reduce prisoner numbers?

That is not an easy question.

Take a couple of minutes.

The easiest way to address the question is by distinguishing between people who get short prison sentences and people who get long prison sentences. We can then talk about the difference between the average daily population—who is in prison on any given day?—and the total number of receptions.

With long-term prisoners, the question is rather more difficult. I do not have the statistics in front of me, but on any given day most of the people in prison are serving longer-term sentences. How that is dealt with is a matter for the judiciary. If society thinks that judges are passing sentences that are too long on offenders who have committed at least moderately to very serious offences, that is an issue for Parliament. It is either for the judges to decide that their sentences are too long, or for Parliament to decide that they are too long and to legislate to introduce guidelines to reduce the length of sentences. Those are both difficult problems.

We have already touched on short sentences of six months or less. Of all custodial sentences passed by the courts, 82 per cent are short sentences, so they account for a lot of sentences. Of the receptions into prison in any year, 60 per cent are for people serving sentences of six months or less. Although dealing with such sentences might not affect the average daily prison population hugely, it would significantly reduce the number of receptions into prison, which would free up the resources of the Scottish Prison Service and allow more time to be spent working constructively with people who are in prison for long-term sentences.

How do we reduce the number of short-term prisoners? Parliament could be draconian and pass legislation saying that the summary courts do not have the power to sentence to custody. That would stop the summary courts sending people to prison, but it might result in different practices by the Procurator Fiscal Service in deciding where they send people and how they mark courts.

I talked about the remand population, and we have talked about fine defaulters, which brings us back to the question that I asked earlier: who is getting short-term sentences? We need to know more about that population. When we know who is getting short sentences, we can address the issue. That will require the co-operation of the sheriffs.

I am afraid that we have run out of time. I know that members want to ask many more questions, but we have to find time for our second set of witnesses. If the committee were to examine sentencing, would you advise us to focus on any particular areas?

The issue of short prison sentences needs attention, so it would be helpful if that were considered.

Sentencing is such a large issue that it is hard for me to give you a direct steer about what you should focus on. I still think that there needs to be more public airing of the debate about what prison and punishment are for. It can be helpful to examine smaller issues that relate to different aspects of the system and such work provides useful information and data but, if we do not consider the bigger picture about what the system is trying to achieve, it is difficult to set targets in those more discrete areas. The committee might like to talk about the bigger issues, too.

On behalf of the committee, I thank you for a very interesting session, which I am sure will help us when we consider item 4 on the agenda.

Thank you for the invitation.

I welcome our second panel of witnesses. Mrs Megan Casserly is the vice-chair and Hugh Boyle is the secretary of the Parole Board for Scotland, and Alan Quinn is head of the parole and life sentence review division in the Scottish Executive Justice Department. Thank you all for coming—I know that Hugh Boyle has given evidence to the committee before. We have until about 11.30 for questions.

Good morning. Some members are still quite new to this committee and have no legal background. Although I found it useful to read the Parole Board for Scotland's annual report, I was aware that I probably needed a general explanation of the system. If I had just been released on parole, what would happen to me? What conditions might be attached to my licence? What support would I receive on the ground? Who are the personnel who would support me—or not, as the case may be?

One thing that did not appear to come up in the discussions about outcomes and risk assessment was the impact on the outcome of the level of support that was available for the person released on licence.

I do not have a legal background either, so I sympathise with you. Are you asking me to describe what happens when an individual is released on parole?

Yes.

The individual is released on parole with standard licence conditions—I understand that the last time witnesses from the Parole Board for Scotland gave evidence to the committee they did not bring a copy of the licence, but we have done so today. There are standard licence conditions and there might well be additional licence conditions, which pertain to the individual and depend on the risk that that person is thought to pose. The individual is released to the local authority to be supervised; we hope that, increasingly, throughcare arrangements will ensure that an individual has met their supervising officer before being released.

After that, there are national standards and guidance for supervising officers in the community. It always annoys me when I see written in a report that someone will be supervised in line with national standards. We really want chapter and verse on what the supervisors are going to do. If someone is released on parole, the chances are that we will have had a report and will know exactly what is going to happen. As soon as the person is released, he will be obliged to report to the supervising officer. Thereafter, he will have to follow the supervising officer's directions.

The Parole Board may say that the person must have additional licence conditions—typically, drug counselling—and in such cases the supervising officer must ensure that the conditions are kept to. The person would have to attend drug counselling as directed by his supervising officer. Depending on the details of the case, there might be different recommendations. There may have been a bit of a problem with drugs—and the problem may still be there—but there is no evidence, from mandatory drug tests, of drugs having been consumed. In such a case, we might recommend an assessment for drug counselling.

If we want to put extra conditions on a licence, we are very precise. The three conditions that we add most often are approved accommodation; drug or alcohol counselling, or both, as directed; and attendance at an agency that has experience in searching for jobs for offenders. Thereafter, we rely a lot on the relationship between the person and the supervising officer.

Do local authorities have the resources to make you feel secure that support is there for people who need it? Do you have anxieties about that?

Yes, I have anxieties, because situations vary. We know that our anxieties have been justified when people are recalled to custody.

Can you give us examples of that?

When somebody has been recalled and the panel of the Parole Board is considering whether that person should stay in prison, the information that we get from the supervising officer can vary. Sometimes it is apparent that people have been supported very closely, but sometimes that has not been possible for various reasons. We all understand the competing pressures on supervising officers. However, as a member of the board, I know that support has sometimes not been as close as I would have hoped. In other cases, supervising officers can give clear evidence that they have been supportive.

Does that affect outcomes?

What do you mean by outcomes?

Whether someone reoffends.

Yes, it could affect that. We often say that we think that risk can be managed in the community, so there is an expectation of some risk. The level of support will often affect that. Sometimes it does not: sometimes a person receives very good support but then fails—for want of a better word. We look into the kind of supervision that is offered. Sometimes it is not as immediate or close as we would have hoped.

Would a single correctional agency assist the process?

You are asking an ex-social worker from a local authority about a correctional agency. I liked the fact that, at recent meeting of the Scottish Association for the Study of Delinquency, Ms Jamieson did not use the word "correctional".

I can see the advantages of having overarching principles, because the failures in the system happen where things do not join up. Overarching principles would assist with that. On the other hand, I believe that people are members of a community first and foremost. That is where the intervention has to take place, so I am not yet fully persuaded of the need for a single agency.

You mentioned that, when someone is released on licence, they have a supervising officer.

Yes—in Scotland, the supervising officer is a social worker.

What is their role when someone is released?

The supervising officer has a statutory obligation to supervise that person in the community; they must remember that that person is on licence—serving their sentence in the community. They have a responsibility to inform the Parole Board, via the Scottish ministers, of any failures by the person on licence to co-operate or to conform to the conditions of their licence. The supervising officer is supposed to support that person and monitor their behaviour; they are not supposed to collude with that person. If they know that the person on licence is breaking the law or not conforming to the conditions of their licence, they are obliged to report back to say so. That is the supervising officer's job.

If I heard correctly what you said earlier, you stated that, when someone was released on parole, you hoped that they would have met their supervising officer.

That is right.

I was interested that you said "hope". Is there a problem there? Before someone is released on parole and goes into the community, should they have met and been interviewed by their supervising officer? Are there cases in which that does not happen?

Before the Parole Board makes its decision, it gets reports from a community-based social worker and a prison-based social worker. The best practice is for the home-based social worker—or a member of their team—to come to the prison and meet the prisoner before the prisoner is released and before they write their report to the board with their recommendations. That is the local authorities' ultimate objective, but it does not always happen, for resource reasons. It strikes me that best practice would be for the person who is to be released and the supervising officer to meet before the release, which would mean that the supervising officer would be in a better position to supervise. Even if that does not happen, we nearly always have dialogue between the prison-based social worker and the home-based social worker before the person is released.

That best practice is not very widely spread.

It varies. One can understand that it would be difficult for a social worker on a far-flung island who has a lot of other work to do to go to Shotts. On the other hand, there is a higher expectation that someone who is a member of a throughcare team in Glasgow would be able to go to Barlinnie or Shotts; indeed, that happens. That is the kind of thing that I am talking about.

We have been discussing what happens when people are released on parole. I want to take you back a stage, to the point at which the Parole Board is considering a prisoner for release on parole. What range of information is available to the board when it considers people for release? Is more importance placed on any one of those bits of information? I am thinking about the public's idea that good behaviour reduces a sentence.

Do you mean good behaviour in prison?

Yes.

We have a dossier on each prisoner. If we are talking about the straightforward case of someone who is being considered for parole for the first time, rather than the case of a lifer, I would receive his or her dossier, along with many others, to read in advance. The information in that dossier is comprehensive. In fact, some of it is repetitious but, given that the prison has to ask various people for their reports simultaneously, I do not mind that—I would rather have an element of repetition than not have the information.

We would have factual information from prison staff, which is a bit like a data set, and opinions from prison staff who know the prisoner, so we are likely to get different views on how the prisoner performs at work and how he is in the hall, for example. The prisoner can sign to say that he agrees to our getting some medical information, so we would have a report from the medical officer.

We would have a trial judge's report on the offence, how the judge arrived at the sentence and what he took into account—perhaps he made another couple of recommendations. We would have a home background report, as I explained, and a report that had been compiled by the social worker in the establishment. The prison social work report would include a risk assessment that was based on risk factors. There is a matrix of risk factors and we would be advised on the factors that it is thought would reduce the risk if the prisoner were to be released. Social workers would probably recommend whether there should be parole.

We might receive reports from various groups that the prisoner has attended—we would expect to see such reports. If the prisoner has been on a cognitive skills course, an anger management course, a drugs awareness course or an alcohol course, we would want a report on its outcome. The person who is being considered for parole would have the opportunity to be interviewed by a board member; most prisoners take that opportunity and there would be a report of the interview.

Of course, the prisoner sees all the reports before we do. In addition, there would be the prisoner's representations. He can write directly to the board and say whatever he wants to say about his likely release. There might be a psychologist's report or a psychiatrist's report, although we do not always get them. It is not standard practice to receive such reports, but we might have them to consider. We receive a range of information.

You asked whether more attention would be paid to some reports than to others. A person's good behaviour in prison is not always a good indicator of what their behaviour will be once they are released. Frequently, a prisoner might be what used to be called a model prisoner, particularly if they are used to being in prison as a result of their many previous convictions. Therefore, good behaviour in itself would not be given a particularly high priority.

Each case is considered individually. People argue about consistency, but it is hard for them to understand that there will be detailed examination of a dossier on a case that might superficially appear to be similar to another case, although it will not be similar to it in detail. Board members will consider all the factors holistically, but we pay attention to how well prepared a prisoner is for release, what work they have done in prison and whether there has been any demonstrable change in the person since they went into prison. We would pay more attention to reports on such matters, but all reports are considered.

You mentioned consistency. There is a question about the consistency of reports from different prison officers—some of which will be opinion based—different regimes and different prisons. How did you tackle the possibility of inconsistency across the prison system?

A work party officer might say that a prisoner is good at his job, that he turns up, does his work and is no problem, and the person in the hall might say that the prisoner does not often approach staff and is quite dour. Those two facets could be found in any person, and such reports would not be particularly troublesome to me. My job is try to make an assessment of risk for the person who is being released, so I am more interested in factors that indicate the kind of risk that they are likely to pose. Obviously, previous convictions in relation to the index offence and whether that offence is analogous to them play a part. What the prisoner has done about drugs and whether he has found or lost them in prison would interest me. I would be interested in such factors.

You prefaced what you said by excluding lifers.

I did so only from the point of view of answering the previous question. We consider lifers differently, via a tribunal.

Is the process the same or different for young people who are sentenced under section 208 of the Criminal Procedure (Scotland) Act 1995?

They come to the board in the same way. Those with shorter sentences come because we have been asked to give a view on whether additional licence conditions should be imposed. Others come because we are being asked whether they should be released. The process and the principle are exactly the same—we still consider the risk.

But the reasons for coming before the board are slightly different.

Yes.

From what you have said, it is not possible to highlight the most significant factors that influence your decisions on whether the risk of reoffending is acceptable or unacceptable. The decisions are based on the particular circumstances of the case and the reports on the individual who is in front of you. Is that correct?

Yes.

I want to explore that issue a bit further in the light of the Minister for Justice's proposal to tag offenders who are deemed to be at risk of reoffending when they are released. What is your view of that proposal?

The prospect that we could order tagging has been raised with us in principle, but I have not examined it in great detail—I tend to consider proposals just before they are implemented because I do not have a great deal of time to do so on other occasions. However, I have given the matter some thought and it strikes me that board members might find tagging to be a useful alternative to recall.

We sometimes receive conflicting information when we have to decide whether to recall a person. A good example of that is somebody who has not been convicted of a further crime but who is facing charges and on whom we have received a police report. We might receive a conflicting report from the supervising officer, which says that the person is responding well to supervision. That is a difficult decision for the board. The extra dimension of tagging might be useful in some cases. Another example is that somebody who has been recalled might be re-released if tagging were an option. I would need to give the issue an awful lot more thought.

What worries me most is the apparent inconsistency in the fact that someone might be released even though they are deemed to be at a sufficiently high risk of reoffending to justify tagging them.

I take that point.

A recent report suggests that there is no real way in which we can work out risk. The issue is complex, but does the board consider that there are any categories of offender who consistently present as low risk? For example, the report claims that those who are convicted of drug-related crimes have a good success rate when they are out on licence. That surprises me, given the information that we have about the chaotic lifestyle of those who are involved with drugs and alcohol. Those who were on short sentences were also seen as low risk. Whom do you consider as low risk?

That information also surprised me when I read the report, because the situation does not feel that way to me. However, if that is the finding of the research, I accept that it is probably the case, although the report did not say what types of drugs were involved. We are always concerned about the results of what we do and, at our conference, we will examine some recall cases. Many ex-drug users who are released may well abide by the terms of their licence, but among those who are recalled, the return to drug misuse is prevalent. However, that might not reflect the overall picture.

We want to examine that finding again. I was as surprised by it as you were.

You said that there were three typical conditions that would be applied; the first two concerned accommodation and attendance for job search and the third was to do with drug and alcohol counselling. Do you feel that the necessary support services for drug and alcohol counselling are there specifically to assist those individuals?

Do I think that they are always available?

Are the services adequate, given that those are the typical conditions that you would want to take into account in putting people on licence? Are the drug and alcohol counselling facilities available to allow you to use those conditions?

Hugh Boyle may want to comment on that. The situation has improved. About three years ago, the Parole Board for Scotland wrote to drug action teams, because we found that we were applying those conditions and then released prisoners were saying, "Well, I applied for support, I was referred to the service and I was put on a waiting list." We get that information less frequently now. In fact, I cannot remember any recent instance of someone coming back and saying that they did not actually get the counselling for which they had been referred, so it seems that they are getting the services that they require.

Could you outline for the committee how much input a prisoner has into the release process? Are there any specific factors that would play a prominent part in a prisoner opting out of the process? I notice from the most recent annual report that more prisoners opted out of consideration in 2002 than in 2001.

Proportionately more?

No, numerically more. Fifty-eight as opposed to 43.

Prisoners make a decision when the parole papers are being referred to them on whether they want to be involved in the process. If they do not want to be involved, they have to sign a declarator. Sometimes they change their mind subsequently and are referred late. They have their dossier, they participate in the interviews for the parole process and, as I said, they have an interview with a member of the parole board.

Are there any specific factors that would cause them to pull out of the process?

The parole process can be quite stressful for certain prisoners. When they have sight of the material that the board will consider, they might not want to put themselves through that stressful situation, if they feel that they are unlikely, on the basis of those reports, to be successful in obtaining early release. Rather than go through that stressful situation, they will avoid it.

Is that the major factor or the only one?

I would not say that it is the only factor, but it is a factor.

It is quite difficult to answer that question, because I know only those prisoners who participate in the process. We normally consider prisoners for non-parole licence conditions, so we would normally see a given prisoner anyway at a later stage in his sentence. The only information that is given at that stage is that the prisoner does not want to participate in the parole process and has not said why. I would be speculating if I were to answer your question.

It might be helpful to explain what Mrs Casserly means by non-parole licence. We use that term to refer to those people who are not released between the half and two-thirds stages of their sentence and who are automatically released on licence at the two-thirds stage. The board has the opportunity before they are released to look at additional licence conditions.

Are the views of the victim or the victim's family taken into account when the Parole Board considers a prisoner for release on parole?

Not currently.

If a victim or a victim's family makes us aware that they wish to be involved, they will be involved.

Should that be automatic? You say that it is not currently so.

If they express a desire to be involved, they will have that right. The relevant provisions in the Criminal Justice (Scotland) Act 2003 will come into effect next year. The difficulty with automatically involving victims or their families is that some might not want to be involved. It should therefore be their positive decision, rather than an assumption on anyone else's part, that they want to be involved, because the process can be quite intrusive if they do not want to know.

Will you advise us on the impact that the Convention Rights (Compliance) (Scotland) Act 2001 has had on the Parole Board's workings?

It has had a significant impact, particularly in relation to life licences. We all studied it hard and worked out exactly what we would be doing because of it. Its impact was pretty profound.

Was there an impact on the number of life prisoners who had been in prison for a longer period of time than their tariffs and were then eligible for parole?

Previously with life-licence prisoners, the board would make a recommendation to ministers; the recommendation would be taken into account but not necessarily agreed with. Now, the board makes the decision about whether someone will be released. We see people as soon as their punishment part has expired. They come to a tribunal and the members of the tribunal—which has the judicial member at the head and two wing members—make a decision. As I said, the 2001 act has had a profound impact on our decisions.

Has it altered in any way the way in which you assess risk?

It has given us a sharper focus on how we assess risk. I cannot remember whether the test for a life-licence prisoner has to be serious harm or risk to life or limb.

It is risk to life or limb or of serious sexual offending.

That is a sharper focus than we had before.

I should add that that test derives from Strasbourg jurisprudence. It is not statutory, but case law has stipulated that that is the degree of risk that the prisoner must represent for him to continue to be confined.

Do you have any concern about the impact on public accountability of the removal by the European convention on human rights of the minister as the ultimate arbiter of whether parole should be granted, especially as the public have often rebelled against the prospect of a particular prisoner being released?

I am sorry; I did not catch your question—I caught the end, but a siren was going off in the background.

It was about the European convention on human rights removing the minister—the politician, who is elected by the people—as the ultimate arbiter of who gets released on parole, especially in the light of certain emotive cases in which the public would rebel against an individual's being granted parole. As a result of the ECHR, politicians are not involved, so that element of accountability has gone. Is that a matter of concern to you?

No. I have seen indications of public opinion influencing a minister's decision, although that was not entirely in keeping with the details of the case. I believe that the separation of functions is better, because we have a pure job to do on any case that is in front of us and such cases are therefore not subject to influence by any other factors.

It is right for ministers to make policy, but it is also right for them to be removed from dealing with individual cases because of the pressure that they are likely to be under from public opinion. Although public opinion should be respected, it does not take account of all the details and all the facts.

Does your assessment include a risk to the individual from the public reaction to their release, even though you might have deemed it right for them to be released?

Do you mean that the alternative is for someone to stay in prison for their own safety, because the public reaction would be so strong if they were released?

Yes.

I have never been to a tribunal at which someone has asked to stay in prison because of fears for their safety.

That goes back to the public's perception that some crimes are so hideous that life should mean life.

This is perhaps a question for Alan Quinn, and it follows on from Bill Butler's line of questioning about the information that is available to victims. There are now additional requirements as a result of the Criminal Justice (Scotland) Act 2003. What impact is that having on information for victims?

The 2003 act's provisions have not commenced yet, but victims will be able to sign up to be notified about various matters that are related to a prisoner's management and release. The Parole Board will have obligations should a person want to know the outcome of its considerations. A victim or victim's family will have the right to know the board's decision on the particular conditions of a licence that impact on them.

I do not think that my answer to the question that Bill Butler asked was full enough. Victims sometimes write in with their points of view, and those views are always respected. However, where a victim has been identified, whether they write in or not, we would include additional licence conditions to prevent people from approaching them if appropriate. Such decisions are taken on the merits of the case, and that particularly applies in cases involving children.

I have dealt with constituency cases in which I have been asked by the victim of a crime about someone's release. In such cases, I advise them to write to the Parole Board but, where conditions have not been applied, people are concerned that the offender might appear in their street or in proximity to them. I suspect that if victims become more aware that they can write to the Parole Board to say that they are aware that offenders are about to be released, they would do so more often. Have you considered that possibility?

I suppose that they might. When I said that we put additional conditions on licences, I did not mean that we do that routinely. There would be an assessment of the case. I can understand that someone would be unhappy if they wrote in and did not get the outcome that they wanted.

I think that you misunderstood my point. I am suggesting that many people do not know that they can write to the Parole Board. The 2003 act gives victims the right to sign up to get information, and I suggest that when that right becomes more apparent to the public, more people will write in.

I am sure that the new legislation will result in that, but that is fine.

This is a sensitive area and it is sometimes difficult to get victims to focus on the issues that the Parole Board considers, which are to do with risk. The families of murder victims in particular consider that the murderer should never be released simply because of the impact that the crime has had on them. It is difficult to get those families to understand that there is a punishment part and when that is up, the only grounds for continued confinement are related to risk.

My final question relates to the research report "Parole Board Decisions and Release Outcomes". I note from the 2002 annual report of the Parole Board for Scotland that you have been successful in making the right judgments in four out of five cases. The research concluded that

"the Parole Board for Scotland was consistently over-estimating the risk presented by parole candidates and that the parole rate could be substantially increased without increasing the proportion of prisoners who would be reconvicted of a serious offence."

I was a bit worried by that remark because although you have had a lot of success, with four out of five judgments being right, you still get the occasional decision wrong. However, the research says that that is okay and that you are overestimating the risk. What do you think of the research?

The English research also concluded that we were overcautious. It is a bit of a no-win situation: we are concerned about the people who we do not release and who successfully complete their licence—we wonder whether we could have made a different decision in those cases. As you point out, however, if only four out of five judgments are correct, there is room for improvement with the people who we release. We need to be vigilant and keep looking at the reasons for our failures. Other than that, I cannot comment.

That is the end of our questions. I thank the three witnesses for giving valuable evidence. We will discuss later in the meeting what we might do if we were to conduct a sentencing inquiry that would cover issues that concern the Parole Board for Scotland.