Item 2 is the consideration of evidence in our alternatives to custody inquiry. We are already ahead of time, which is excellent. I refer members to paper J1/03/3/2. There is a second paper with the same number—I do not know what that means. They are written submissions from the Scottish Police Federation, the Association of Scottish Police Superintendents and the Association of Chief Police Officers in Scotland.
We welcome the wide range of disposals that are available. It seems sensible that there should be more alternatives to imprisonment and fining, which are the main disposals. One of our written comments relates to what we see as the patchy availability of alternatives to custody across the country. When there is evidence that alternatives work, they should be made available equally throughout the country.
Technically, you are correct. However, in taking evidence, we have ventured into areas of diversions from prosecution and areas of restorative justice. We have expanded our inquiry beyond our remit, as we are aware that one alternative to custody would be not to start down the prosecution trail. We are considering that.
What is needed is an individual approach to individual cases. One of the difficulties is having just one solution for an offence. At the heart of alternatives to custody, in general terms, is the need to consider the most appropriate disposal for the offence and the offender. The police's aims are to ensure community safety, to reassure the public, to deal with offenders and to reduce the incidence of reoffending. What might work for one person might not be appropriate for somebody else.
From the various programmes that we have seen, we know that one size does not fit all. We would like you to talk about the fact that the range of disposals is limited. Are you saying that the programmes that exist should be extended elsewhere or that new ones should be in the pot as well?
The first part of your question is a good starting point. There are good schemes, but they are not available universally.
Can you tell us of a couple of schemes that you would call good?
I am thinking of work with young people in various places. In Dumfries and Galloway, we have restorative justice and cautioning, which will be rolled out across the country. In some places, Safeguarding Communities Reducing Offending schemes are available, but in others they are not. We need to look at the research evidence to see what works in reducing reoffending and then roll that out across the country.
I do not think that we have ever said that the range of disposals is limited. The Scottish Police Federation is satisfied with the diversity of penalties that exist. Professor Hutton's research sums up the situation. He believes that few people understand the range of penalties that are available. To a large extent, most police officers do not understand the full range of penalties. Unless there are restorative justice schemes or electronic tagging schemes in their areas, police officers will not necessarily know about them, how effective they are or what people think of them. Police officers could be seen to be in the same situation as the general public—unless the schemes are available on their doorstep, they will have a pretty limited knowledge of them. I do not have any suggestions about how the range of penalties could be extended.
Are you saying that there is a lack of education among police officers, through your various organisations, about the availability of alternatives to custody?
Police officers obviously take an interest in what a court does by way of sentencing, but some of the schemes are not available across the board in every area. Unless someone has had personal experience of the schemes, they remain unaware of them. That is certainly what I picked up from Professor Hutton's research about public attitudes—the people whom I represent fall into the same category.
The background to the comment in the submission about the limited range of penalties is the patchwork nature of the provision of penalties. It is quite apparent to my membership across Scotland that what is applied and works effectively in one area is not necessarily available elsewhere. We would like provision to be extended. One issue is the visibility of alternatives to custody. We feel that the focus should be on victims' issues, but provision should also be geared specifically towards the needs of the offender.
What kind of crimes and restorative measures do you mean?
I am thinking of minor crimes. In that context, there have been experiments in which people are involved in face-to-face meetings with their victims or in which they make some reparation towards vandalism or criminal damage. Such measures make the community aware that some form of public restorative justice is taking place.
I am interested in restorative justice and know of two schemes in my neck of the woods. How do the restorative justice projects that you are aware of work? Are they successful?
I can give examples from Dumfries and Galloway, where we have been using restorative justice cautioning and warning systems, primarily with young offenders rather than with adults. Restorative justice is about getting an offender and their family together with either the direct victim or representatives of the community. The power of restorative justice is in its impact on both the victim and the offender; it makes the offender realise what they have done to the victim.
Is it the case that the schemes have not been running long enough for a proper evaluation to take place?
The lack of evaluation is partly to do with the length of time that the schemes have been running, but it is also because of low participation.
I know that there must be consensus between the victim and the offender. Does the low participation stem from unwillingness on the part of the victim or the offender?
That can sometimes be a reason. However, the victim does not necessarily take part. Sometimes, the victim can be represented by a friend or family member who can speak of the impact of the offence, or by someone representative of the wider community.
You said that mainly young offenders were involved. Do you know of any restorative justice schemes for adult offenders?
In Glasgow, there are reparation and mediation schemes that include adult offenders.
Have they been successful?
It is difficult to answer that. They are successful in individual cases, but, as you would expect, in such cases—
I appreciate that you might not know the details at the moment, Mr Strang, but you refer to certain projects in your paper. It would be helpful if you could get back to us in writing with information such as when those projects started and what tracking is used. You mention Grampian police's work with Barnardo's on the new directions project and the Prince's Trust's youth opportunities for young offenders project, for example. You might not know whether tracking is in progress, but, if you do, it would be nice to know, as the problem with many such projects is that people would use them if they knew that they worked.
You are right. The projects are new, but they will have produced reports and evaluations, which I will try to get hold of for you.
The Scottish Police Federation has stated that it supports the availability of non-custodial sentences, but only if a proper risk assessment has been made available to the court. Do you believe that adequate assessment of risk is currently carried out before community disposals are imposed on offenders?
If the risk assessment is done properly, the public should be properly protected. I am aware of some studies that have been done. I believe that the Scottish Executive publishes figures annually on breaches of community service orders, probation and other forms of alternative sentence. A breach can have a negative impact on public perception. If the breach is not seen to be dealt with seriously, the system falls into disrepute from the perspective of the public, the police and the offenders.
Does your call for proper risk assessment require legislation?
I would not think so. I am not an expert on court procedure but I believe that, before a magistrate decides on a punishment, they will ask for reports from social workers and others. I would have thought that any form of community sentence should have an in-built system by which a proper risk assessment can be made. That would be in the interests of the public and the offender, depending on the kind of service that the offender will be required to do under part of the community service order.
Could you expand on the idea of the risk assessment? I am not sure where it would fit in with the other reports that the sheriff would see before he issued his disposal. Any concerns about an offender going out and committing an offence right away if they were under a community service order should perhaps be highlighted in the safety evaluation report that the sheriff sees. Would a risk assessment be in addition to such reports or would it replace them?
I do not see the risk assessment replacing those reports. You are probably right when you say that an element of the reports will currently include different types of risk assessment. Clearly, we are talking about alternatives to custody, but we are also talking about a person who is viewed by the court as a candidate for custody. If the court takes the decision not to lock up that person, but to give them a sentence that is to be served in the community, part of the risk assessment has to be based on the question whether that course of action is safe for that person and the community. Every public body has to carry out risk assessments when they consider any function or occupation in an organisation. Risk assessment is an important element in the consideration of alternatives to custody.
In the main, we are talking about minor offences, so all the people involved would be back in the community in six or nine months' time. If someone is in prison, they are not committing offences in the community and the community gets some respite from them.
That is where the whole issue of risk assessment becomes particularly interesting. If an individual is sentenced for six months, the likelihood is that they will be out after three months. If they are given a community disposal, that disposal might last for a year. It could be argued that, for the three months during which the individual is in prison, at least there is no risk of that person committing another offence in the community. However, the fact that they will be out in three months means that it is likely that they will end up reoffending, because the prison service cannot address the offending behaviour in that short time scale. Therefore, it could be argued that a disposal in the community for a year gives the community greater protection.
My point was that, if we were to take a longer-term view, we might see benefits from alternatives to custody. If those alternative sentences reduce reoffending in the longer term, as the evidence seems to suggest, they are a route worth taking. If someone is a prolific offender, however, the three-month respite for the community is also worth pursuing. I return to the point that I made earlier—it is difficult to generalise when each case needs considering on its merits.
Will you expand on the police involvement in community disposal programmes. I know of various programmes in different parts of the country. Are the police involved in any of those programmes?
Not post-sentence—it is rare for that to happen. The police are involved in some of the alternatives to prosecution, such as those that involve police warnings and cautions. The police are also involved in what could be called the sentencing aspect of some schemes.
I am concerned about something in the SPF paper. You state:
In the case of police officers—
No. I know that you also talk about police officers, but I want to deal with the generalities. Are you saying that people should be in custody but that, because of financial considerations, that is not happening?
In the sentence from our submission that you highlight, we are saying that a large number of cases that are reported to the courts are, for whatever reason, marked "no proceedings". Because the Crown Office takes those decisions entirely independently, we do not always get to hear the reasons for those decisions. As far as we are concerned, the Crown Office is unaccountable in that respect.
Were you concerned that financial considerations rather than justice determined what happened in a case?
Yes.
Is that linked to alternatives to custody if one is making decisions on resources? Do money considerations prevail in the justice system?
That is often our perception, particularly in relation to no proceedings and plea bargaining. In those instances the case does not go to court at all or, when it does, it is dealt with on a reduced number of charges—the others have been plea bargained away. The only reason that we can see for that is that it gets the whole case through the court more quickly. It would achieve a guilty plea, whereas, if the other charges were left to stand, there would be a not guilty plea and a trial would follow. It is obvious that money comes into that.
Do your colleagues feel the same?
Mr Keil rightly articulates people's perceptions. I am slightly more confident that decisions are made on the merits of individual cases. In many circumstances, there are good reasons why the fiscal will not necessarily proceed with a case or review the charges. That is the independent prosecutor's role. I do not necessarily see the financial link as strongly as Mr Keil does.
I have been in contact with several procurators fiscal and I understand why they make some decisions without consultation. However, victims of crime perceive that justice is not being done and they want to see it being done. The public question the efficacy of the criminal justice system when there are plea bargains and no proceedings, even though there might be good reasons for making those decisions, such as resourcing pressures, which were articulated in the review of the Crown Office and Procurator Fiscal Service.
Although that point is slightly off our track, I raised it because it is in the public domain. It stands out and it is only appropriate that members should comment on it.
Could a pressured procurator fiscal with an immense logjam of cases be strongly tempted to plea bargain and to make an offer to the accused that would result in a more lenient disposal? If so, what is the best way of dealing with that situation? Should the Crown Office lay down guidelines for fiscals?
The Lord Advocate recently issued guidelines to the Crown Office saying that in no circumstances should a charge with a race element be plea bargained away. When I heard about that, I suggested that similar guidelines should be issued in relation to the police, so that, when someone is charged with assaulting a police officer, in no circumstances should that charge be plea bargained away.
We could follow that up with the law officers, because they are in the position to take action.
Paul Martin will ask a question before we consider how resources, in the widest meaning of the word, have an impact on alternatives to custody.
My question is for Mr Shanks. The submission from the Association of Scottish Police Superintendents says that
Our response is a compilation of comments from members throughout the country. That comment was a reflection of media concern about the rising prison population and the need to reduce it. Behind that is the recognition that many people who are in prison should perhaps not be there, particularly those who are in prison for not paying fines. If the non-payment of fines issue were dealt with and more space were made available in prisons, perhaps those pressures might not be as apparent as the media said they were. That was the origin of the comment.
We will move on to that subject later. I ask Paul Martin to keep the flow going.
The ASPS said in its submission that it was concerned about the extent to which community service orders are breached. What is your specific concern?
The difficulty is that we have little means of quantifying how often the orders are breached and what further sanctions are imposed on those who breach them. Our submission talked about how to monitor effectiveness, because people who have criminal convictions are one side of the issue. We found the arrestee drug abuse monitoring programme in Fife and Strathclyde interesting. The programme involved questioning people about their wider criminal activity, which might not have been sufficient for prosecution. More qualitative data could arise from such projects about the effectiveness of sentences and the number of times that orders have been breached.
How would you gather such data? Organisations have advised the committee about the effectiveness of community service orders and we want to evaluate that information. What would be the best way for us to undertake that process?
A long-term evaluation of different sentences is needed. First, the menu of alternatives to custody must be made available across the board, so that a meaningful and wide sample can be taken. As Mr Strang said, some youth projects are showing signs of benefit, but they are small in number. We need a much bigger sample size for evaluation.
Could the police play a more prominent role in sharing information and working with other agencies to deliver such an evaluation? I expect that other agencies would say that they would like to deliver such an evaluation, but that sometimes the police are involved in the process, have been out on the street and are not necessarily dealing with prevention at the same time. On reflection, should you improve some of your operations?
I can reflect only on experiences with young people. We have seen the effective benefits of case conferencing, which involves sitting down with offenders, victims and criminal justice partners as a multi-agency group to focus on the crime that was committed and the offender's needs, to try to get the best from the offender. However, case conferencing is resource intensive, not only for the police but for criminal justice partners.
Are police on the front line told about someone in their patch who is under a community service order?
Invariably not.
Should they be?
The people to whom it is important to provide feedback are the victims of the crime, as that ensures that they know that something has been done.
Are victims not informed either?
I think that the prosecution service is moving towards keeping victims more informed. However, as has been said, when cases go to court, the plea is often changed and the charge might be reduced, yet no explanation is fed back to the victim on the rationale behind those decisions.
But that is different from simply intimating the existence of a community service order; it is an explanation of why a decision has been made. We have been aware for a long time that people have difficulties in understanding what is going on in the well of the court. Indeed, they cannot even hear the proceedings.
That brings us back to our earlier discussion about risk assessment. In any appropriate risk assessment in which it was considered proper to advise the police, that is precisely what should be done.
But it is not done at the moment.
Not to my knowledge. I am sure that it is done when the police have to deal with a particular type of offender and it is felt that they need to be made aware that such people are to remain in the community. However, it is not done as a matter of course.
I should also point out that it is not done for the purposes of supervising the community service order. We would not want to take on that additional burden.
No. I was simply asking whether you know about people who are subject to such orders.
When Mr Martin was speaking earlier, I was trying to remember who publishes the annual statistics. The data are certainly available and are quite detailed. For example, they tell us the percentage of breaches on different orders and the sanctions that are taken over such breaches.
Perhaps we should follow up the matter with the Executive's central statistics unit.
I am sure that you would be right to do so. However, I could quite easily lay my hands on the information tomorrow and ensure that the committee clerk gets it.
That would be good. Please forward any information that you find to the clerk. We are finding that, although the information is out there, it is all in bits and pieces. It is a bit like a treasure hunt.
I want to pursue the issue of communication a little further. What is the state of play concerning information technology links between the courts and the police? I know that in the past it has not been easy to pass information to the police about, for example, interdicts with powers of arrest. I was under the impression that the matter was being addressed—although I am not sure whether that was happening all over the country—and that it would become much easier for the courts to flag up to the police what had happened. Presumably the same could happen with other sentences in the community. Is the physical means of communicating such information up to scratch?
Experiments are being done in Aberdeen and Glasgow on IT links between the police and the fiscal service, but they are focusing on the way in which the police report cases to the fiscal. I do not know whether information comes back out via the same route. However, there is scope for development. As I understand it, we are still fairly much at the trial stage of such a system, and it certainly has not been rolled out across the country.
If IT were to be rolled out across the country, would it be a quick way of informing the police about what was happening in the courts?
The link to that is the Scottish Criminal Record Office computer. At the moment, any community service order that is made automatically goes on to the SCRO computer. Such an approach is more desirable than sending an e-mail to the police, who would then be responsible for updating the computer. The more automated that we can make the sheriff clerk's disposal function and the way in which they update criminal histories, the better.
That takes me on to restriction of liberty orders. I understand that, if such an order is breached, the court is informed instead of the police. I do not know whether you have any views on the issues that that raises. For example, you might not realise that someone wandering the streets at 3 o'clock in the morning has been tagged and should be at home. After all, the people who monitor the matter would report such a breach to the sheriff instead of to the police. In some areas, there is a public perception that the police should be involved.
It might depend on different localities. Certainly, in my area, local officers know about people who are subject to restriction of liberty orders, the times of their curfew and so on. As a result, they would hear about and deal with any breach. Perhaps that is because breaches are few and far between at the moment.
That is not the information that I had, but your information is possibly more up to date than mine.
Is there sufficient funding and co-ordination of the agencies that are involved in delivering the available community disposals? It has been suggested that extension of the use of community disposals could result in extra burdens on the police service. What are your views on that? What areas might suffer or be affected one way or another as a result?
One of the issues is that the funding streams lie in different places. Many alternatives to custody are funded through the local authority social work departments. When I speak to procurators fiscal, I find that the use of alternatives to custody is driven not by the need to divert offenders into them, but by what is available. I have spoken to fiscals in Edinburgh who have said that a certain number of offenders can be diverted because that is the number for which provision exists. Provision should be available throughout the country, but that would clearly require funding where it is not available at the moment.
I agree. Those who are involved in the provision and supervision of non-custodial sentences regularly state that, if only they had more funding, they would be able to provide more and better such sentences and to supervise them better. I do not know about the communication between agencies.
So, going down the road of alternatives to custody would have budget implications for police forces throughout Scotland. Provision for that would have to form part of the additional resources that the Executive would provide.
That is certainly correct for the alternatives for which there is considered to be a police role.
You talked about not being told about community service orders. I take it that the courts do not tell you about them—no formal notice is given to you. The ACPOS submission states:
Community service links in a little bit with restorative justice, as it is about an offender paying back to the community and making a contribution after their offending behaviour. Our point is that, if that contribution is connected to the voluntary community or business community, it will have a more positive impact.
To what extent does that happen just now? We know that good work is being done. We went to Freagarrach and saw that all the agencies are involved in that project—the police, the social work department, the housing department and others. How much are the police involved in other community disposals? You have told me that you are not formally advised of them, but does it depend on those who operate the disposal? Is there any system of communication between the agencies and the police throughout Scotland that lets you know what is going on?
There is no formal involvement of police officers in many community disposals. On the outcome from the court, about which we talked earlier, the police would have access to the disposals through the integration of Scottish criminal justice information systems. As the disposal is recorded on the computer system, that information will be available to the police. However, in community policing terms, we would not be involved in supervising the order.
Are you saying that there are not enough outlets—not enough people wanting gardening done or fences built—so that if kids are on a community service order, they are looking for somewhere to work? Is it the case that not enough businesses or voluntary organisations are involved?
I would not say that there are not enough partners involved; that is not an area for the police. My general comment was that if community service orders and alternatives are to be effective, they should involve the whole community. They should not be seen as criminal justice activity.
The gist being that community disposal is dependent on the community engaging with it.
That is helpful, yes.
The submission from ACPOS notes:
No. It is our view that if such a measure is going to be effective, it should involve the whole community. It should not have a narrow focus.
What is the police role in this? Is there a role for the front-line police?
You gave an example of a community service order that you had seen in action, with police involvement. I have never had any personal experience of that, but clearly it happens.
Would it not also have the confidence of the police? You are in the loop, and dealing with this from the front line. Even from a psychological point of view, should not the police feel a measure of security with the scheme? What I am getting at is that, if you are not sold on it, resistance will rightly result from that.
There are benefits in the system for the confidence of police officers. However, I am not sure that the police have a huge role in the delivery of justice; our part in it stops some way before that.
That is not what I was getting at. My point is that, just as sheriffs and the public must have confidence in alternatives to custody, so must the police. That is why I am asking about your involvement; it is part of the package. All the agencies must feel that this is a sensible way to proceed. Certainly, that appeared to be extremely important in the Freagarrach project.
Presumably you keep in close touch with the social work department. Is it not your primary concern to see the laws maintained? Provided that the law is maintained, yours is not the lead role—community service is more the social workers' department.
Yes, that is the case. We also safeguard the broader interests of community safety, building community confidence and reducing crime. You are absolutely right that our views on this topic are general rather than specific, because we are not specifically involved.
One of the issues that was raised in connection with the evaluation of alternatives to custody was the fact that a proportion of offenders, particularly those who are drug addicts, found that imprisonment assisted them in dealing with their condition and therefore prevented them from reoffending. Do you accept that sometimes imprisonment is the way forward?
If I understood the question properly, I am aware of some American research that says that, first and foremost, people need to be dealt with as individuals, that their individual difficulties need to be addressed and that that can best be done in a custodial setting. An organisation that deals with drug addicts and drug offenders in London—the name of the organisation escapes me—recently agreed with that view. It, too, said that that could best be addressed in a custodial setting.
I understand from the Scottish Prison Service that its ability to treat prisoners who are serving short sentences, which is what we are considering, is very limited. The Prison Service has more success with longer-term programmes for offenders who have received longer sentences.
I support the supportive aspect. We can never get rid of prison sentences, because we need them to be available as a sanction if any of the alternatives to custody are breached. As Mr Strang said, a short sentence does not provide an opportunity for rehabilitation. There is clear evidence that supportive treatment that is targeted at the offender in the community and that gives the offender appropriate levels of assistance is effective in individual cases. It is a question of targeting the right sort of support and the right sort of sentence at the individual's needs.
I return to the issue of resources. The ACPOS submission suggests that the police might require extra resources if there were an extension of the use of alternatives to custody. From what you have said so far about the role that you play in community disposals, it seems that additional resources would be required only to deal with those who breach a community disposal. In other words, you appear to be arguing that additional resources would be needed only to enable you to bring such people into custody, so that they could be brought before the court. Is that what you are saying?
That is part of what I am saying. I am also saying that the issue in its totality includes diversion from prosecution. I have mentioned restorative justice and the cautioning and warning system. That requires a greater investment of police time and effort than is involved in simply writing a report and sending it off to the fiscal.
Can you give an example of the type of involvement that the police would have?
Conducting a restorative justice warning would involve the police officer in speaking to the victim and the offender and taking part in a restorative justice conference. Although that all takes up time and effort, we believe that the investment is worth it because of the positive outcome that we will obtain.
If we were to extend the range of alternatives to custody that were available, would the only additional resources that would be necessary relate to breaches?
That is right. I would not anticipate that the police would be involved in delivering or supervising those alternatives. You are right that our involvement might relate to breaches.
I want to clarify that point. It could be suggested that if we were to introduce further alternatives to custody, that would in some way necessitate a considerable increase in police financing. That argument could act as an inhibitor to the provision of more alternatives to custody. A great deal of research suggests that such alternatives are much more effective than custodial sentences in dealing with offending behaviour. Any resource implication would be associated primarily with breaches and diversion programmes in which the police might have a direct involvement.
The vision in the long run is to move resources from prisons into alternatives. I do not see that necessarily having a big impact on police budgets.
Does anyone else on the panel want to comment on that point before I bring in other members?
I am not sure that I understand what Mr Matheson means by additional alternative sentences. Clearly, if they were to take the form of a wider range of police warnings, that would involve greater time and effort on the part of the police and, consequently, would have an impact on resources. However, we need to hear an example, because without knowing how the police would be involved, we cannot say that breaches are the only thing that would concern us.
For clarification, there are post and pre-sentencing options. Courts may pass a sentence and choose to pursue a community disposal. There may also be a stage in the process when a person is diverted from the court process to some type of restorative justice scheme. That may kick in when the police are involved or at a later stage once the Procurator Fiscal Service has received the police report, so the case never reaches court. I want to be clear where exactly you think additional resources will be required from the police, because I have not been persuaded that there would necessarily be a significant demand on police resources. You have been unable to quantify any demand.
If we were greatly to expand the electronic tagging scheme, for instance, the likelihood is that the police would be involved in breaches. There would therefore be an impact on resources. If we are talking about new alternatives to custody that involve the police in some way—the police might have to supervise, for example—there will clearly be an impact on resources. However, until we know the shape and size of the alternatives, we could not make estimates.
That is fair. You have identified areas on which there would be an impact; those will later have to be quantified.
If alternatives to custody that are truly effective in reducing offending are implemented, that might reduce the impact on police officers at the reporting stage, to allow them to divert their activities into other parts of the community.
So there are swings and roundabouts.
I should like to ask about police involvement in breaches of community services orders or restriction of liberty orders. The police do not immediately arrest somebody who does not turn up for their community service, or who has been out for an hour or two when they ought to have been in and linked up to the tagging machine. Presumably, the court is informed about that first. Is the person then summonsed to court, or are the police told to go and look for them? How much are the police involved in breaches?
I could not quantify that. If somebody is in breach of a community service order, it is perfectly feasible—I am sure that this happens—that a warrant is issued for that person's arrest, and that is when the police would become involved.
The police would only be involved when a warrant is issued for arrest. Is it the same for RLOs?
Yes. We are not routinely involved in supervision and arresting people. Information would be reported back to the court, which would then decide what would happen, and we would act on the court's instruction.
That is the point that I was making. It might not be all that often that the police are involved in breaches.
I do not have the numbers.
It was just a shot in the dark.
What are your feelings on alternatives to custody and community disposals that are currently available to children's hearings?
I would need a list of those. I cannot think of alternatives to custody available to children's hearings off the top of my head.
Most of the disposals for children's hearings are non-custodial. One of the concerns that my association has expressed relates to the fragmented nature of the provision of alternatives. The facilities and alternatives that are available very much depend on the area in which the reporter is operating. We would like to see a much longer menu of options available to the reporter to allow a proper disposal geared towards the offender.
Would that be in relation to the availability of secure accommodation for the small minority who commit offences on a persistent and repeated basis?
Only a very small minority of young people require secure accommodation. The majority of young people respond well to the alternatives to that. We support the supportive and restorative benefits to the young people and their families of those alternatives, which aim to help them to change their offending behaviour.
Secure accommodation for young people is a hot topic at the moment. Does Mr Keil share the view that the number of young people concerned is very small and that secure accommodation is perhaps not the best option for them?
The number involved is very small. I apologise for not bringing the details of the research with me, but much of it has been publicised recently. There were very recently about 90 secure places in Scotland, and many people who were more deeply involved in the subject than I was estimated that 200 places were required. That seemed to match the number of young people who were problem offenders. We certainly think that a greater number of secure places needs to be made available.
The offending behaviour is only one aspect of the behaviour that brings the young people concerned before children's hearings. They will often have other problems, such as substance misuse and family difficulties. We should be addressing these issues much earlier. If someone who has reached 14 or 15 years needs to be put in secure accommodation, we have failed and it is too late. We should look to intervene much earlier, identify the problems and put in place support mechanisms to prevent the young people becoming offenders.
We were made aware of those issues when we visited the Freagarrach project.
They are not standard. In fact, I will be speaking to the Audit Committee on this subject later this afternoon, when I will be addressing the Audit Scotland report on young people who offend.
I have read it.
Part of the action plan resulting from that is to standardise the system, including procedures and monitoring processes. At the moment, different systems operate among different police forces.
You are telling me that if a young person commits a certain type of crime in one part of Scotland, they will get a formal written warning, whereas that might not be the case in a different area, where some other proceedings will be taken.
That is possible. I know that warnings are administered by a superintendent in Strathclyde; in other places that is done at a different level, so—
I am not talking about different levels. I am talking about the decisions on what to do—for example, the decision not to make a report to the procurator fiscal. I take it that the issuing of a formal written warning is the end to the matter at that stage. Is that correct?
There are variations across the country in the arrangements between the force and the local children's reporter. Sometimes, reports will be sent to the reporter for every single case; in other areas, the police will be more selective. That is why there is a need for standardisation. If that can be achieved, we will get a clearer picture of what is happening.
What happens when someone is given a formal written warning? Do the police keep a copy of it as a quasi-formal record to be referred to in the event that the person offends again? Will it be incorporated into the collection of information about them? Is it kept as data at all?
It does not count as a criminal record, but—
I know it does not.
It is a piece of information about the individual and the family. I would hope that that information would be kept, and would be available to—
Aside from the questions of who delivers the written warning, when they deliver it and whether it is decided to end the matter there or to take it up with the PF, are the level and manner of recording the same throughout Scotland?
Audit Scotland found a number of variations. It depends on the history of the system and on how things have developed locally. That is why we are going to examine the system at a national level.
It is not really satisfactory to have a system under which the outcomes are different for different youngsters in different parts of Scotland doing exactly the same thing.
That raises questions of whether decisions should be exactly the same across Scotland and of the extent to which there can be local variation, so that problems in particular areas may be dealt with in particular ways.
I appreciate that the facts and circumstances of a case affect the disposal, but I asked, as an academic exercise, about identical circumstances, if there are such things. In one part of Scotland a person might get a formal written warning, but in another part and in the same circumstances, the person might be reported to the procurator fiscal or the children's panel and proceedings would take a different route. That cannot be right.
That will happen within the exercise of discretion.
Yes, but as an academic exercise, if we assume that the facts and circumstances of two cases were exactly the same, but the practices of those who hand out the disposals in different parts of Scotland were different, the outcomes would be different.
I agree, which is one reason why I support the roll-out throughout the country of the available alternatives to sentencing. If a person commits an offence in Aberdeen, they might go to jail, but if the crime is committed in an area where an alternative to sentencing is available, the person will not go to jail.
What are formal and informal written warnings in your constabulary? I assume that those things might be different in other constabularies.
I cannot speak on behalf of a force, but the Scottish Children's Reporter Administration and ACPOS agreed that a system of informal warnings by the reporting officer—the officer who deals with the offence—and formal warnings by a supervisor or other more senior police officer was to take effect Scotland-wide from 1 September 1999. A number of conditions were laid down at that time: the crime or offence had to be minor; the child had to have no previous offending; the child could not be co-accused with an adult defender; the child had to admit the offence; and the parents had to accept the child's admission and consent to the formal juvenile warning. When the process was introduced, I described it as complicated and said that it would not reduce the burden on the police—indeed, I thought that it might increase the burden. I also said that the delivery of the process and the training for it would have resource implications for the police.
I do not defend the differences that the convener mentioned. There is a recommendation on the issue in Audit Scotland's report "Dealing with offending by young people" and we are addressing it.
Is it not the case that, without written warnings, many more young people would be dealt with more severely? The point of issuing a written warning is to keep young people off the conveyor belt of crime.
Yes. As I said, the system of warnings was proposed for minor crimes and offences, but if the system did not exist, those crimes would be dealt with further along the route. Consistency is important.
A warning is at the bottom rung of the ladder. What is missing is the full range of rungs throughout the country. If somebody is not given a formal warning, the next option might well be to take no further proceedings. It is important that there is a scale of intervention.
Do constabularies keep a record of the success of written warnings in diverting children and young people from crime? Success might be that the person never appears before the police again.
I do not have the figures with me, but the rate of non-reoffending is high. The vast majority of young people who are dealt with through a warning never come to the police's attention again.
That is interesting.
I want to return to the issue of evaluating alternatives to custody, which we have already touched on. In its written evidence, ACPOS explained that the lack of research on the effectiveness of community disposals
We have already touched on the matter of public confidence in the criminal justice system. It would be much easier to sell community disposals as credible alternatives if evidence clearly showed that sending offenders to prison results in a given outcome and putting them through alternative disposals reduces reoffending—we would then have much more confidence in outcomes. At the moment, the research evidence is limited. We would like to see more research evidence that backs up the effectiveness or otherwise of such schemes.
I agree with that—there is no point in my adding anything to what David Strang has said.
I concur with David Strang. Earlier, I said that perhaps the Scottish Criminal Record Office could have an integral role in providing the core data for proper evaluation. Such data are missing and police officers would welcome such information. I am sure that the public would also welcome more information in order to find out whether something is effective.
In general, there is a sense that the improvement in information technology systems on the sentencing side and in the Scottish Prison Service might finally let us bottom-out in the next few years some of the issues that we have discussed. However, I think that the committee was persuaded by the case that has been made for the effectiveness of community disposals for prisoners with short-term sentences. There are broadly comparable outcomes or slightly preferable outcomes. There is no point in recounting the case now, but it will appear in our evidence.
That echoes what Michael Matheson said about a community service order as opposed to a three-month sentence, which we know does not have much effect.
I want to return to what Mr Strang said about warning letters being successful in preventing crime reoccurrence. How are things recorded? We have had evidence sessions with Apex Scotland and others and have been advised about the difficulties of tracking young offenders. For example, I could write to a superintendent in A division, which operates in my constituency, and ask him how many warning letters have been recorded. He could then advise me how he tracks the young people in question to ensure that they do not come back into the system. Is there a system that is as sophisticated as that? It was said that warning letters are successful. In other evidence sessions, the difficulty that we have experienced is that no one can show us how things are recorded. How can you say that warning letters are successful?
There is no national recording system. If a person receives a written warning, information is not recorded on a national computer. I suppose that that is because the information is about local disposals, which vary from place to place. In some places, there might be home visits; in other places, warning letters might be sent to parents to say that their children had come to the police's notice in certain circumstances. Disposals vary and have been local until now. I think that the local results show that most offenders are dealt with once, but you are right to point out that there is currently no national system.
How do you know that warning letters are a success, given the anecdotal evidence that you have gathered? I am trying to find out what is the magic equation that says, "Here is something that works and we can prove it."
I am not putting it as strongly as that. If you speak to your local divisional commander he or she will say that we deal only once with the vast majority of the young people with whom we deal. That is our experience. There is a hard core of repeat offenders with whom we are dealing repeatedly.
I am conscious of time.
I certainly do not see alternatives to custody as a soft option. We discussed them at our most recent executive meeting and we welcome them, because they have a positive impact on the communities of which we are in charge. We have to keep focusing on the impact that they have on the local community. The success of the alternatives to custody will depend on whether they can be demonstrated to be beneficial to the community and the police officers who police it. If the confidence of the police and the public is to be maintained, breaches of alternatives to custody have to be dealt with properly and have to be seen to be dealt with, rather than our bringing offenders back before the court, giving them a slap on the wrist and returning them to the community service order.
Are you talking about "one strike and you're out"? What do you mean when you say that breaches have to be "dealt with properly"?
This goes back to a point that Mr Keil made earlier. The offenders for whom we are considering alternatives are people whom we might have considered sending to prison. The point that you made about the drug rehabilitation order is right; it is a hard regime and the individual has to appreciate that it involves making reparation to the community, so they have to work at it. The community would expect that if someone who should have gone to prison in the first place breaches the order, perhaps they should go to prison after all. There are scales and variations depending on the crime that we are talking about.
When we visited the drugs court, we saw that although a sheriff in one case seriously considered imposing a custodial sentence for a breach of the order, he did not do so because he saw that the individual concerned had come so far. I am not excusing what they did but, as you say, it is very difficult to keep off drugs. We heard an explanation from one individual that a dealer had come and offered him a freebie. In those circumstances, one had some sympathy for the man who was trying to stay off drugs, but who was given them to get him hooked again. Are you saying that you would support the kind of discretion that the sheriff showed? It is not a case of saying to an individual, "You have been on this order and you have breached it so, hey, you are now in custody."
It would be far too arbitrary to say, "One, two, three strikes and you're out." Each case must be dealt with individually. There is a sales exercise to publicise how effective the alternatives to custody are. The effectiveness can be demonstrated only in the long term by examining historical information to say that they have reduced reoffending. Local communities have to be able to say that alternatives have worked in their area and that they have a better quality of life because of what is happening.
I have a question for Mr Keil. Is it not basically a question of getting the right balance and, depending on the circumstances of each case, getting the disposal that suits the circumstances of the individual in question best, in the hope not just of protecting the public but of providing rehabilitation and a deterrent?
Absolutely. There are a number of good reasons for looking for alternatives to custody, but there are still categories of offender who, in my view, can be appropriately punished only by being sent to prison. That is only the start of the debate.
The point that we have gleaned from this inquiry is that in looking at alternatives to custody we are considering the longer-term benefits to society and whether everybody, including the force, is persuaded that the alternatives are working, and that the public and property are still protected. That would be a fair assessment.
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