Item 5 is consideration of the Criminal Justice and Licensing (Scotland) Bill. This is our substantive business for today. We shall take evidence particularly on the provisions in part 1 around sentencing and community payback orders. The committee held its first evidence-taking session last week, when we took evidence from judges, sheriffs and justices of the peace on the proposal to create a Scottish sentencing council. Today's session will build on that evidence.
Thank you, convener and committee members, for the invitation to speak to the committee in this evidence-taking session. As you pointed out, convener, I chaired the Scottish Prisons Commission, which reported last year. There has been a great deal of debate since then. We have a unique opportunity for significant and radical reform of the criminal justice system. We tried to base our work on evidence because it was clear that, over the past 10 or 20 years, we had built up an enormous amount of research in Scotland and we were keen to take that forward. Importantly, we have the opportunity, in Scotland, to move to a greater degree of bipartisanship on the issues that are before us.
Thank you for that, Mr McLeish. We move to questioning specifically on the Scottish sentencing council.
Good morning, Mr McLeish. You said that the Scottish Prisons Commission's report was evidence based. The report suggests that there are inconsistencies in sentencing. However, the Justice Committee has heard that there is very little, if any, empirical evidence to suggest that inconsistency exists. How would you address that seeming paradox? How would you respond to the charge that there is little empirical evidence of inconsistency?
I do not accept the premise that there is a paradox. There is sufficient evidence from various sources to suggest that there are inconsistencies in sentencing throughout Scotland. In a way, much of that is part of the judicial system. We have one of the best court systems and benches in the world. The judiciary's impartiality and the division between the judiciary, Parliament and Government are sound. In that sense, it is no surprise that different decisions will be taken on different cases in different courts throughout Scotland.
I hear what you are saying, but you said in response to my initial question—I think that I am quoting you correctly—that there is "sufficient evidence" from various sources of inconsistency. Will you outline those sources and back up your assertion that there is sufficient evidence?
Different levels of sourced evidence were not in the commission's report—I hope that the report was brief and crisp. The first generalised level is publicly recorded cases that generate public debate in Scotland. That is one area. Perhaps, like committee members, I would not set a great deal of store by what is covered in the annals of the press. Secondly, there are court decisions—volumes of material emanate from the courts and come through the Government and the statistical research side. Those decisions illustrate how certain cases are dealt with. Thirdly, there is anecdotal evidence, which I do not take as seriously as the sourced evidence that you would find in Government and Parliament publications, but which illustrates that there are genuine concerns.
I think you said that there were four sources. Let us set to one side the anecdotal evidence and, as you put it, the publicly recorded cases or those that are covered in press reports. You talked about two other sources: court decisions and statistical sources. Are you saying that the recommendations of the commission are based absolutely on court decisions and statistical sources? How much credence, investigation and examination did the commission give the court decisions and statistical sources in making its recommendations?
In the work of the commission, the sentencing council and the other national agency that we suggested were not the most important considerations. The commission made 23 recommendations. I would argue that, in the grand scheme of things—I mean no disrespect to the Government's concern about this—the sentencing council was not a high priority for the commission. Given what is before the committee, I still believe that it is not a priority.
You said that transparency was one of the objectives of the commission's report and of the proposed sentencing council. Other objectives were to promote consistency in sentencing and to assist in the development of sentencing policy. Do you think that the proposed measures represent significant progress from the present situation?
My view, as chairman of the commission, is that the sentencing council did not figure overprominently in the commission's considerations. I say that not to escape the question, but because it was the reality. We felt—and I still feel—that the bench in Scotland faces much more important issues than just this issue around sentencing. I understand fully the emotions and concerns that the issue generates, but, for me, it is not a priority.
That is very clear. Thank you.
Good morning, Mr McLeish. I want to take you back to the independence of the judiciary, which you touched on in your answers to Mr Butler. We heard oral evidence from judges and sheriffs last week in which they questioned the statement that the sentencing council would not affect, undermine or impinge on their independence. Do you accept their line of argument? What is your general view on the issue?
I do not accept that line of argument, because, as I said in my responses to Bill Butler, I do not think that the sentencing council is an important issue in the criminal justice system in Scotland. Secondly, that argument is a natural response from the bench, given its perception that the Parliament or Government wants to meddle in what it has regarded as its own sphere of activity. Leaving aside those two considerations, society as a whole has to be part of the process. I do not mean that society will be involved in any way in making judgments or decisions, but, in 2009, it is important that the public understand and appreciate more fully the workings of the system. Given what I have read and given what the make-up of the sentencing council will be, I do not think that the council can be regarded as a threat to the independence of the judiciary.
To sum up, your view is that a sentencing council would provide not complete, but greater, clarity for the public on the processes, enabling people to understand them to a greater degree. You rather pre-empted my next question, which was about the strange anomaly of those who call for mandatory sentences calling for judicial independence at the same time, so I will not ask it.
I do not accept it as a premise for the future activity of the sentencing council. If I were asked today which of the 23 recommendations I would leave out, it would be the recommendation that a sentencing council be established. I am not surprised that the bench is making a song and dance about the issue, because it sees anything that it thinks threatens its independence as an issue. For the bench it may well be an issue, but in the greater scheme of things it is a modest measure. It has been discussed for some time, will not undermine the independence of the judiciary and will open a window for society generally. Other countries that have mandatory sentences are beginning to encounter problems—I am thinking of California's three-strikes-and-you're-out policy. We have a judiciary that is as independent as any judiciary in the democratic world could be. All of us, including members of the committee and the Government, value and prize that. Although I understand the bench's reaction, I would not lose much sleep over the proposal.
You said that if you were to leave out one recommendation it would be the proposal for the establishment of a sentencing council. However, I presume that you support the 23 recommendations and would prefer all of them to be implemented.
Indeed. I was trying to give an indication of my priorities—nothing more. I fully support the 23 recommendations.
As I understand it, you are saying that inconsistency in sentencing and the need for guidelines are largely a matter of perception and that, in reality, there may or may not be inconsistency. Is my interpretation of your position correct?
There are both perceptions and realities. Bill Butler asked a fair question about the corpus of evidence. Our discussions with an enormous number of people indicate that there is evidence of inconsistency. It is important that the bench's perceptions of what a sentencing council would do and some politicians' perceptions of the benefits of having such a council are handled more reasonably, as there are extremes at both ends. The establishment of a sentencing council is a modest measure that should not get too many people too excited.
Two arguments are entwined here. First, are guidelines needed in the first place? Secondly, if there are to be guidelines, under whose authority should they proceed? Do you accept that there is a difference between the Parliament passing legislation that lays down policy and the range of sentences that are available in particular cases, a quango such as the Scottish sentencing council giving instructions to judges, and the judiciary deciding matters with advice of a sentencing council? There are three different levels.
I share the concerns of many of my former colleagues in the Parliament about quangos. I would not want to talk about the sentencing council issuing instructions, as "instructions" is a value-loaded and threatening word. I am not yet convinced that the Government thinks that setting up a sentencing council is the most important issue on the agenda, but it would help in relation to the view of society at large. I see no threat to the independence of the judiciary. There is a widespread perception of inconsistency, which can be supported by evidence. However, I would hate the proposal for a sentencing council to dominate the important work that the committee has ahead of it. There is a grave danger of the issue becoming distorted.
At the end of the day, if the sentencing council were an advisory council whose recommendations were considered by the appeal court in some appropriate way and sanctioned at that level, we would not face the constitutional issue that has caused so much angst in the higher and lower ranks of the judiciary. That is the key point that I am trying to get at.
You are absolutely right. We must debate, discuss and arrive at a format for the sentencing council. My low prioritisation of the recommendation revolves around society generally having better insight into what is happening. It is entirely up to members and the Government to decide the procedure for the council's operation. I have no strong views on the issue. My only concern is that the sentencing council should not appear as an ultra-quasi-legal body that looks like it is imposing its individual judgments on the work of the courts. That would be reprehensible and a backward step that would not help us to maintain the independence of the system that we value so much.
Thank you for those helpful comments.
In a moment, we will move on to the issue of community payback and alternatives to custody, which is of particular interest, but I am still slightly troubled by the fact that there appears to be a lack of empirical evidence of inconsistency in sentencing. Much of the evidence is apocryphal. Do you know of any research that has demonstrated the existence of inconsistency? You say that you spoke to a number of people; can you give us examples that arose in those discussions and inquiries?
I will try to be up front with the committee. First, the issue did not take up a great deal of the commission's time during its work, which lasted about nine months. Secondly, there is an amazing array of court statistics in Scotland that could provide the committee with the evidence that it requires. Thirdly, it is clear that the issue has been rumbling around in parliamentary and Government debate for some time. For that reason, the commission and I thought that the proposal had merit. The laws that parliamentarians make provide frameworks for what the bench does anyway, so the establishment of a sentencing commission seemed to be a modest step forward, especially in relation to the public, who figured prominently in other aspects of our work.
Are you saying that no analysis of the evidence took place and that there was no real research? If so, there is no evidential basis for the recommendation.
That is not entirely true. I have indicated that the establishment of a sentencing council was not a priority for the commission. After analysing the criminal justice and prison systems, we came up with recommendations. The proposal fitted in with the thinking of the commission, which wanted far more transparency to be injected into the criminal justice system in Scotland.
With respect, the committee recognises that point; no member has trouble with greater transparency. I will break the question down. Was any research undertaken?
We did not commission any research.
So there was no scientific analysis of the data that you say are lying about in the court system.
We did not—
Am I right in saying that there was no scientific analysis?
Let me answer your question. We did not seek any original research. However, the commission thought that the establishment of a sentencing commission was a sound idea, as part of wider society's view of the criminal justice system. That is why we supported it.
You are telling the committee this morning that there is no scientific or evidential basis for the recommendation.
We did not seek any evidence base. As I have said to you, there are sources that would show inconsistencies. We happily acknowledged and accepted that. However, within the commission, we discussed issues—
With respect, what were those sources? If you sought them out, did you look at them so that you were content to make such a recommendation? If you did not seek them out, look at them and analyse them as a committee and if there is no independent research analysis, your recommendation is mere assertion, is it not?
No, it is not mere assertion. It is confusing to suggest that we did not have any evidence. We did not seek any evidence.
Therefore, you did not have any evidence before you. If you did not seek it out, you did not have it before you—is that right?
In our nine months of work right across the criminal justice system, the issue intervened at different levels, at different times and on different subjects. We did not commission any independent research because we did not consider the matter a priority. We know, however, that the court statistics in Scotland—I have seen a lot of them—show inconsistencies.
So, at best, you could argue that the recommendation—you say that it is not a priority, so I am astonished that it is a recommendation—was based on an impression. Would that be correct?
No, it would not.
What would you say, then?
It goes well beyond an impression. In looking at the vast array that is the criminal justice system, you are focusing on the issue of the proposed sentencing council. However, we were looking at the whole panoply of sentencing, including specific issues such as sentences of six months and less. We knew that there was significant variation in the court system in Scotland in relation to six-month sentences. We did not say, "The sentencing council is to be discussed today—let's have all the evidence," but it permeated our work on other considerations that there was a clear case to be made for a sentencing council.
Would you recommend such an approach to a student who was writing a PhD?
I do not accept the inference of your questions. I started off by saying that the issue was not a priority for the commission. We did not need a PhD-type research programme to inform the commission members that, right across the board of our considerations, there was inconsistency in the court system.
It seems that you did not need any research programme at all.
No, that is not true. I have tried to explain. If I may be robust, convener, this is a very unproductive line of questioning. I have said that the issue was not a priority for us. I have also said that, in coming to the 22 other recommendations and in undertaking nine months of work, we came across issues in every court in Scotland. Some of our recommendations are about the efficiency of the court system. I do not accept that there was no basis for including the recommendation in the commission's final report.
I am obliged.
We will leave that line of questioning and move on to the use of imprisonment and community payback.
In many ways, this is at the heart of the commission's report. You had in the back of your minds issues such as overcrowding in prisons and the ineffectiveness of certain sentences, not least prison sentences. The report states that prison should be used for those offenders whose crimes are serious and violent and for those who present a risk to public safety. Can you give us some examples of how such an approach would change the current use of custodial sentences?
We were keen to find out the profile of the prison population. It seemed elementary to find out, first, who was in prison and why they were in prison. It is self-evident that for society, for the press, for politicians and for the public in general, people who commit serious crimes—we can define those—should be in prison, for serious reasons to do with the need for rehabilitation and, more important, public safety.
Many of us would accept the general logic of what the commission found in that direction. However, is there not a significant resource issue in terms of long-term savings in expensive prison costs versus the short-term need to fund the alternatives that you seek to put in place? How important was the resource issue in the commission's thinking on such matters?
Very important. In the final part of the report, we made it clear that no one should be under the impression that the proposed changes could be made without considerable input of new resources—the statement was as bald as that. There must be new resources. If we are successful in the long term, there could conceivably be a transfer of resources from prisons to the community, but that cannot happen in the short term. Therefore, we argued—I have argued this with the minister, too—that we need new resources. For community sentences to work, parliamentarians, the public and the bench must be assured that they can trust the alternatives. We need new resources to send a powerful message that community sentences can work and do not pose the risks that some people have implied. Resources are critical. We cannot move down the proposed path to any significant degree unless we have the resources—not money just shuffled around in a budget or produced through creative accounting in either the Parliament or the Government, but new resources physically on the ground to make community payback a genuine option.
In fairness to the Government, I point out that £2 million has been invested to get current community sentences up to scratch. Do you agree, however, that that does not deal with the new community sentences that would result from the policies that you advocate in the commission's report? Are you able to give us any ball-park figures for the cost of those?
I do not have any figures, partly because we were not asked to consider that. The commission was seeking ideas and recommendations.
We have heard evidence about the use that is made of short-term sentences. The sheriffs, in particular, have given us oral and written evidence to the effect that short-term custodial sentences can be effective and are necessary in some circumstances. They have also told us that the current use of such sentences is generally appropriate. Those people deal with sentencing at the sharp end, day in, day out in the courts. Do you have a view on that? Can you give us a feel for the circumstances in which, in your view, short-term custodial sentences will continue to have a place?
Yes. That takes us back to earlier discussions about the independence of the judiciary.
The sheriffs argued that, at the moment, they do not send anybody to jail whom they do not have to send to jail. If all that the statute does is formalise that, we ain't going to make much difference to what happens. I assume that that was not the intention of the commission.
It certainly was not. There are circumstances in which six-month sentences have been applied and should continue to be applied. However, we proposed a presumption against short-term sentences, as there are other ways of dealing with offenders. If prison were working for a large section of the population, there would not be so much reoffending and so many reconvictions. Those outcomes show that we are not best served by the current practice. We believe that the bench could do more but, to be fair to them, they need alternatives, and the range of alternatives varies across Scotland. I would not like to think that they would imperil anybody in a community by placing an offender in the community when the full range of facilities was not available to them.
Let me sum up the resource issue. If there were no more resource available bar the £2 million that has been allocated for community sentences, would you still recommend the substantial change in the law that you have proposed, which is a presumption against short-term sentences?
Yes, I would. I accept the basis of the recommendation, as there are solid ideas that we think can be pursued. As I have said, community sentences are equivalent to custodial sentences. However, if you speak to the public, to parliamentarians or to the bench, you will encounter a degree of scepticism or cynicism about community sentences and a degree of concern for public safety. Unless and until we overcome that, we will not get the full benefits of the commission's recommendations. That is why resources are a critical factor in moving us down that road.
Thank you, convener, for allowing me to speak even though I am not a member of the committee. I was the Deputy Minister for Justice and have worked in the prison service, so this is a particular interest of mine. I also acknowledge Henry McLeish's views on the sentencing of women, which is where some of the debate started.
I will briefly give some context. Over the past decade, if the crime level has gone down, the prison population has gone up; if the crime level has stayed the same, the prison population has gone up; and if the crime level has gone up, the prison population has gone up. Those are the facts. There is therefore no correlation between the level of crime and the prison population.
I was not saying that the community sentences are not working. You have made the point extremely well, but I would like you to comment a little further. The problem is that if someone has a sentence of less than three months, they will not get on to any sort of treatment programme in the prison. As you said in your opening remarks, it is about warehousing for the prison. The prison concentrates on prisoners who get sentences of more than six months. Is the answer not to have the community justice authorities commence assessment and in-reach programmes in the prison, which will continue outside, rather than taking these people out of the prison? Many people need the boundaries of prison to start with. They need the containment of prison to get to the point where they can engage.
We need both. The sentencing issue is important. The mindset that we are locked into in Scotland is that prison is a discrete alternative: it has walls, barbed wire and fences and it has been around for 100 years or longer. Community justice is a more complex and difficult alternative for the public and bench alike. That said, why can we not move to a situation where the prison and community sentences are merged? People have similar problems, whether they are dealt with in the community or in prison.
If I heard correctly your answer to Robert Brown's last question, you suggested that, even if it was unclear where resources for community sentences would come from, we should still push in that direction. I will put the question the other way round. If there were more resources in the community, would there be any need to do any of the things that you suggest? Would it not be clear to the bench that they should use community sentence disposals?
No. That is my bigger concern. As I have said in other fora, much of what we suggested in our report is common sense, and our view is that some of it could have been implemented some time ago. In talking of resources, we are talking about mindset. At Cornton Vale, there is also the mystery package—the vastly increased numbers—for which people, as yet, have no explanation.
If the presumption is against short custodial sentences, could that lead to the imposition of longer sentences?
We have an intelligent bench. One of our fears was that, if we said that there should be no sentence of less than six months, people would find a way of getting round that. That is why we came to the conclusion that we would rather work in a politically bipartisan way and with the support of the bench and the public by legislating for only a presumption against sentences of less than six months. Essentially, if the sheriff felt that a non-custodial sentence would be inappropriate, he could make a case for applying a sentence of less than six months. That is the best explanation that I can give of that.
Will we just need to wait and see on that issue?
I am an optimist in life. The judiciary on the bench have operated for a considerable time, they have lots of experience and they are concerned about their independence. The reason why we opted for six months—some people might call that a compromise, as other countries do not have six-month sentences—is that we do not want tariffs just to drift up.
Let me move on to those alternatives. The commission's report stated:
That is very much what we had in mind. First, we want to see the courts operate in a different way. Secondly, we want more payback options in the community.
Robert Brown focused on resources. I think that the majority of committee members will agree with what you said, but making community sentences work with immediate effect will take resources. I do not think that the figure of £2 million that has been mentioned in relation to this bill will do the job. Without resources, and without the people to go to somebody's door and say, "Right, come on—you're coming along," the ideas are meaningless. We are kidding ourselves on. What can be done without financial resources?
Powerful recommendations have been made, but I have made it clear that we need resources to make them work effectively and to give a wide choice to the bench.
So, investment now would pay off in later years, when money might be redirected from the prison service.
Cathie, you probably know as much as I do about these issues. What you say is logical, but it is also illogical in a sense. If we could redirect funds now, it would be helpful. However, given the prison population and the prison budget, it would be hard to transfer any resources until there were significant changes in prison numbers.
You raised the issue of fast-track disposals. Would community courts provide us with an opportunity to develop that principle?
We visited Finland and New York, where we saw the original Red Hook, whose equivalent is in Liverpool. We went to the Bronx, Brooklyn and downtown Manhattan, where we discussed the possibility of setting up special courts of one sort or another to deal with specific problems. The commission's view, to which I subscribe, is that radical reforms in every court in Scotland are preferable to creating special courts such as knife courts and drugs courts. From my political experience, I know that establishing a special court is good, generates publicity and moves matters forward for a while, but why can we not have a system in which more radical ideas—the best ideas in the world—are implemented in every court, so that every court becomes a special court in relation to the totality of problems that it faces? We judged that changes could be made in every court, with the co-operation of the bench and criminal justice social work.
I appreciate your point—that existing courts should be more efficient—but if we established community courts some of the resources that are provided currently could be redirected to delivery in the community. The Lord Advocate and others with experience in the judiciary have advocated that approach on many occasions. You may have advocated a similar approach in your long political history.
I may have been there before—my memory is not as good as it used to be. The commission thought that resourcing courts throughout Scotland—getting changes in every court—was important. On the other hand, we know where the bulk of crime, victims, prisoners and those serving community sentences in Scotland are located. It comes back to the point that Richard Simpson made—should we invest resources in community sentencing or in prisons? Should we put resources into the poorest areas in Scotland, which suffer from massive inequalities—from his experience, Paul Martin knows more about that than I do—and intervene before matters reach the courts? I would rather see all the courts develop and invest more resources in the courts that serve the areas with the biggest problems.
You expressed concern about the timeframe for fast-track justice. Would the community court model not give us the ability to deliver fast-track, same-day justice in practice, as it would allow us to deal with the individuals who commit crimes in the communities in which they committed them? Might that not save considerable resources in the long run?
You are right to make the point that community is a powerful concept. The scenario that you have described could happen. I suggest three measures to ensure consistency throughout Scotland: first, we should establish progress courts to chase people up; secondly, we should offer a wide choice; and thirdly, the same-day justice that is provided for custodial sentences should be available in every court. However, I accept your point that there is a need to ensure that the maximum amount of resources go to the areas where they are needed. From the evidence base, we know where the problems are, but we are not doing a great deal, as a society, to tackle basic inequalities.
You have pre-empted some of my questions. You dealt with the issue of offenders who lead chaotic lifestyles not turning up to meetings. I think that you would concede that the existing community service order compliance rate is much less than satisfactory, even though, for perfectly sound reasons, social workers are in many cases reluctant to report a breach. Some people simply have no intention of carrying out their community service order. How will the proposed legislation tighten that up?
We have to take as our premise that, for some people, there is no action that we—those who are here or the Government—could devise that would be of benefit.
Yes, but those offenders are not prepared to co-operate. We must remember that they have been sentenced to community service as an alternative to custody. They are drinking in the last chance saloon, and they are carrying on drinking—it would probably be more appropriate to say that they are taking drugs—and reoffending. How do you cope with such people? I see nothing in the provisions that you are suggesting that is likely to cope with that element.
Again, I would caution you on that. Although we have specific recommendations, they are interlocking. What I have tried to do—this answers one of Cathie Craigie's points—is to get certain measures to start to interlock to provide a better result. While I do not disagree with the cynical view, which is that for some people community sentencing will never be appropriate, I do not think that we have given community sentencing, in its widest sense, our best shot. By implementing the recommendations we can start to do that.
All of us around the table—I include you in that—have a duty to the victims of crime. In many instances, the victims of crime do not accept that community sentences work. You have outlined the lack of visibility and the lack of feedback into the community about what precisely happens. In short, the public think, "They're getting away with it." Is there anything in the report that would provide reassurance to the public?
Yes. I return to my earlier point. First, the interlocking nature of the recommendations, especially on the efficiency of the court system, will give that perceptible reassurance that justice is happening and that offenders are not walking away. The opposite perception worries me as much as it worries you.
I think that we can agree that the outcomes are not good under either heading. However, sometimes our communities require a little respite from the shoplifter who has offended 40 or 50 times, the person who has driven for the fourth time while drunk and disqualified and the small-time drug pusher who has previous convictions. Such offenders normally attract sentences of six months or less. Is the community not entitled to look to us to provide protection from such people, albeit in the short term?
That argument was put to us and we can see merit in it in the short term, but I reject it because what people want in communities throughout Scotland is a long-term future in which the crime figures go down and people are less afraid of crime and can have a sense of security. The respite approach is no more than a short-term consideration. When I was a member of the Parliament, the chief constable of Fife Constabulary said to me that if he could get authorisation to take 90 kids to Blackpool there would be no crime in Fife that weekend. That would provide respite for the community, but it would not be a long-term solution.
We will not go down the road of considering the temporary increase in the Blackpool crime rate that might have arisen if the chief constable's suggestion had been taken up.
That would have been an English problem.
Exactly—not our problem.
Meeting suspended.
On resuming—
We welcome panel 2: Councillor Margaret Kennedy, convener, and Anne Pinkman, chief officer, of Fife and Forth Valley community justice authority; Jim Hunter, chief officer, north Strathclyde community justice authority; Tony McNulty, chief officer, Lanarkshire community justice authority; and Raymund McQuillan, vice-convener, and Yvonne Robson, professional development manager, from the Association of Directors of Social Work.
As convener of Fife and Forth Valley community justice authority, I welcome and thank you for your decision to come to Alloa to take evidence on the Criminal Justice and Licensing (Scotland) Bill. The proposed legislation is important. It has its roots in the Scottish Government's review of community penalties and the recent Scottish Prisons Commission's review, led by Henry McLeish. The CJAs positively welcomed the reviews and, likewise, we welcome the opportunity to participate in the bill process. The CJAs support and endorse the intentions of the bill, as outlined in the written evidence that we submitted. We will be pleased to answer questions on our written evidence and any other questions that you wish to ask.
Thank you. We will proceed to questions. The panel is fairly formidable, so I suggest that we pose the questions through you, Councillor Kennedy. If you feel the need to invite one of the officials to respond, please do so. We will obviously want to hear from them under specific headings that are part of their remit. Paul Martin will start the questioning.
What are your views on the purposes and principles of sentencing as set out in the bill?
The principles of sentencing are always two or threefold. Punishment is certainly always part of sentencing considerations; rehabilitation and restoration to victims or the community are the other principal considerations.
Do you want to highlight any areas of sentencing that could be added to the bill?
No—the purposes and principles of sentencing are covered fairly fully in section 1.
We move on to the Scottish sentencing council, which was a fairly vexed issue this morning.
Good morning, colleagues. Does more need to be done to provide sentencers with sentencing guidelines, and to provide the public with accurate information on the sentencing process? If so, could the proposed sentencing council play a role in that?
I am happy for Ms Pinkman to lead.
The CJAs—both the conveners and the chief officers—support the recommendation on the establishment of a sentencing council. That is not to say that we wish to undermine the independence of the judiciary, but we feel, for some of the reasons that the right hon Henry McLeish outlined this morning, that it would add to the level of knowledge and understanding of the general public and to the level of transparency in the system.
What are those inconsistencies? The committee and I would be grateful if you could outline them for us based on evidence.
The Government publishes statistics annually on sentencing in every sheriff court in Scotland. The sentences are listed, and the percentage of custodial sentences, probation orders, community service orders and fines that are imposed are highlighted. I will not mention the courts by name because you can look them up yourselves, but in some courts 22 per cent of the sentences that are imposed are custodial, whereas in other courts custodial sentences account for 11 per cent of sentences. There seems to be no rhyme or reason for such variations in sentencing. That is the main evidence: those statistics are published every year.
What role could the proposed sentencing council play in providing accurate information for the public's delectation?
The sentencing council would have a major role in relation to the transparency of the system. That would involve explaining the purposes and the principles of sentencing in ordinary language; monitoring sentencing across the different courts and judiciaries in Scotland; and performing some kind of evaluation of that monitoring, and being able to comment on it and explain why sentencing in certain parts of Scotland may differ from sentencing in other parts.
That is exactly what Lord Cullen said last week. Are you saying that we are seeking coherence, and not necessarily uniformity, in sentencing?
Yes, absolutely—I agree with what was said on that. The sentencing council, or another such body, should be able to explain that to people. The bill includes a requirement for the sentencing council to report annually; it should be able to use that and other mechanisms to explain that idea, so that the public understand why those differences occur.
If a Scottish sentencing council is established, would you like any changes to be made to the proposals that are set out in the bill? Are there any ways of modifying that particular proposal?
At this stage, there is no great desire for any alteration to the proposals. We will have to see how the sentencing council develops before we produce strong proposals or make our views known on how it is operating. However, I support the view that has been expressed on the statistical base that is available on inconsistencies in sentencing. The statistics to which Tony McNulty referred are widely available and highlight clearly the inconsistencies in sentencing across courts, a range of disposals and a range of similar types of offences. It is widely known that inconsistencies exist.
Are not those bare statistics? Is it not the case that we would have to analyse the statistics and that we cannot simply infer from them that there is inconsistency?
I do not agree that that is the case.
Why not?
Because the knowledge of inconsistencies is available from the statistics themselves.
But we have to analyse, examine and interpret the statistics—we cannot simply take them at face value, can we, Mr McQuillan?
In some cases, we can. When we have statistics that show clearly differences in sentencing for similar types of offences across a range of courts in Scotland, we can take them at face value. I agree that further analysis is needed, and I suggest that the sentencing council will give us the basis for that.
Last week, the suggestion was made by, I think, the Lord President and certainly by Lord Cullen that, if there is to be a Scottish sentencing council—of course they do not see the need for it, whereas you do—it should have a judicial majority. There would be a majority of people who have expertise and experience as sentencers, which is not what is proposed in the bill. What do you think about that?
I can give a personal view.
That is what I am asking for.
I do not think that that would be a problem, provided that there were lay members on the council. That issue is not a major sticking point in progressing the matter.
One theme in community justice authorities is that our customer is the victim—that is who we are there for. I have no problem with that suggestion on the make-up of the sentencing council, but it is important that victims are well represented on the council because, just as we are, the courts are there to serve victims. That would be my only proviso.
I hear you loud and clear.
I do not regard that as a major difficulty. We must focus on the sentencing council's major purposes. If a majority of the members of the sentencing council were judicial members, that would not necessarily deflect the council from its major purposes. Those major purposes have been highlighted: they are to introduce a degree of transparency and greater clarity in sentencing and to provide an ability to analyse sentencing patterns—the need for which Bill Butler has highlighted several times—and a greater understanding of sentencing processes and patterns throughout Scotland.
I am intrigued by Mr McQuillan's suggestion that we can use the bare statistics. Surely, among other things, the pattern of crime in different sheriff court areas must be taken into account, which requires deeper analysis. The pattern in Orkney must be different from that in Glasgow.
There are different patterns, but the available statistics break down sentencing patterns by type of offence. That gives us greater consistency in interpreting what is taking place.
Yes, but my point is that the mere fact that 11 per cent of those who commit certain sorts of crime go to prison in one place whereas in another area the figure is 22 per cent does not tell us anything without further analysis. The real question is to do with the breakdown of crimes. Some research on or information about the situation is needed. For the sake of argument, assault can involve a fairly minor incident up to something approaching a murder—there is a range. Without a breakdown, how can we possibly draw conclusions about those matters?
I am not arguing that further analysis is not required; I am saying that we can draw conclusions from the available statistics. The statistics do what you suggest they do not do—they give a direct comparison by type of offence. For example, we can compare custodial sentence rates for housebreaking in one part of the country with those in another part of the country.
The ADSW's written submission states:
As has been said, some analysis is required. If there is clear evidence of varying sentencing patterns throughout the country, the sentencing council could provide some guidance to try to eradicate anomalies where they are pronounced.
But is that a matter for the sentencing council? You are talking about relationships with judges and how the general guidance that is set is applied on the ground. There would be all sorts of implications for the separation of powers if a quango, which is what the sentencing council will be, had such a power or influence over the judiciary. Are you not concerned about that approach?
The intention is to ensure that there is dialogue so that serious anomalies are addressed by people with expert knowledge.
Can I take you back to the point about inconsistent sentencing and statistics? Do you agree that, if there was no inconsistency in sentencing, that would be obvious from the statistics because, given the range of cases that go through the courts over a period of time, the sentences would average out? Do you agree that the statistics show a range of different sentences between different courts because there is an underlying problem of inconsistent sentencing and not because all the less serious assaults occur in one part of the country and all the serious assaults occur in another part? Do you agree that the averaging out deals with the problem and that the statistics can be relied upon to show that we do, in fact, have inconsistent sentencing?
I agree.
I would like to hear your comments on the disjunction between prison and the community. For example, only 1,000 of the 18,000 offenders with custodial sentences are placed on alcohol reoffending programmes in any year, and a number of individuals in prisons cannot be started on drug treatment programmes because they are not guaranteed to get a community place when they come out. Much of what is proposed does not address the problem, which is the disjunction between the community element and the prison element.
Who will take the first cut at that question?
Dr Simpson's point is correct and well made. There is perceived to be a wall or barrier between the SPS and the wider community. Obviously, the prisons or the CJAs should remove that. In our CJA, we recognised early on that we needed to bring together health and the prison service. The drugs and alcohol programmes are a key part of that role, and mental health is inextricably linked to both issues.
Fife and Forth Valley community justice authority puts great effort into bringing together the three Forth Valley prisons and our colleagues in NHS Forth Valley and NHS Fife. We are addressing the issues that Dr Simpson raised. That said, issues arise around short-term prisoners, one of which relates to attempts to put in place arrangements before an individual is released. It is easier to do that for those who are serving longer sentences.
Would that be the general view in the CJAs?
Yes.
I think that what Dr Simpson suggested relates more to the previous legislation—the Management of Offenders etc (Scotland) Act 2005. Among other provisions, that act encouraged the CJAs to talk to the Scottish Prison Service about having what are called community-facing prisons. Previously, 400 of the 1,700 prisoners in Barlinnie prison were from Lanarkshire. The majority of prisoners in Barlinnie were from Glasgow, so most services were geared towards them—the focus was on Glasgow housing, social work and so on.
In principle, I do not disagree with the contention that there should be greater joined-up working between prisons and community-based social work on the continuity of programmes. Community justice authorities across Scotland are working actively towards restoring greater consistency in the work of prisons and communities. In the context of today's discussion, however, that does not provide a solution. The problem with the current situation is the greater number of short-term prisoners who are released into the community with little or no supervision. Dr Simpson's proposal regarding short-term prisoners would involve community-based criminal justice social work in activity that it is not funded to provide at present.
I am not sure whether the panel heard the evidence from Henry McLeish. My point was that the Government tried successfully to do that for women offenders. From evaluation, we know that there was a reduction in reoffending among 500 women who went through the time-out programme in Glasgow and had their drug problems treated. Despite that evidence, we have seen a continuing rise in the prison population. Your hypothesis is that, if we put the money into a community resource, the prison population will drop. That is not proven by the reality of the women's prison system.
I do not think that that is my hypothesis. The ADSW supports the view that the prison population should fall, but I do not contend that that will be achieved simply by enhancing programme work.
In the past five or six years, during which we have been trying community sentencing, the number of prisoners being admitted on sentences has dropped by 5,000—from 23,000 to 18,000—whereas the number being admitted on remand has gone up from 18,000 to 23,000 or slightly more. Much of the rise in the daily population is because of longer-term sentences for serious offences, but the other reason is remand. We have been moving in the right direction, but remand and breaches really need to be tackled as they are the two areas in which substantial rises have occurred. In one case the percentage is high, although the numbers are small. In the case of remand, the increase is about 28 per cent. Huge numbers of additional people are going into prison.
I take it that that was a question and not a comment. Can someone please respond?
SPS statistics for 2008-09 show that half of the liberations of prisoners to Fife and the Forth valley were people who were remanded only. They were remanded into custody, and at the point of sentence received either a backdated sentence that allowed them to be freed from the court, or a non-custodial disposal.
I want to follow up on Dr Simpson's point. Over the past few years, progress has been made on the interface between prisons and communities and examples of good practice exist across Scotland and can be developed. However, the huge problem that prevents significant progress is what Alex McLeish referred to as the "churn" within prisons. It is just—
Alex McLeish is the manager of Birmingham City Football Club.
I beg your pardon—Henry McLeish referred to churn. What happens is that a wall of people comes in and out of prison day after day. That prevents the Scottish Prison Service from beginning to do anything with the very short-term prisoners.
The interventions from Dr Simpson, welcome as they have been, have diverted us slightly from our track. We will move on to ask about community payback.
The community payback order will replace a number of current community disposals. Would there be any value in retaining any of those disposals, or does the bill encompass what is needed?
Briefly, we fully support the establishment of the new community payback order, which we think will simplify matters and help people to understand. I do not think that any of the three orders that will be removed would be worth retaining in its own right.
I note that the written submission from the community justice authorities states:
Under the new community payback order, the court will have the opportunity to include an additional requirement for drug treatment. That is right and proper. However, drug treatment and testing orders will be retained under the bill. We merely make the point that, if the bill's aim is to simplify things to make them much more transparent and easy to understand, leaving both measures in place could cause a difficulty in that people might get them confused.
If there are suggestions about how that could be improved, now is the time to make them.
We were not sure why drug treatment and testing could not have been made a requirement of the new community payback order, within the same criteria.
Do any of the other witnesses want to comment?
I take it that no one from the Association of Directors of Social Work wants to comment on that.
As those who were present for our earlier evidence session will have heard, it is accepted that many offenders live chaotic lives that can make it extremely difficult for them to complete a community sentence by turning up when they are supposed to do so. Getting Henry McLeish to drag them out of bed might be a bit extreme, but many people whom I represent would certainly think that that would be reasonable. Can anyone outline to the committee the problems that, in the wealth of experience that the panel has, currently exist on the ground?
In terms of offenders' compliance rates with community service orders, we have considerable difficulties, although it should be noted that the vast majority of offenders comply with and complete their community service orders. Those who either choose not to comply or are unable to do so tend to present a range of difficulties and problems that are associated with background issues such as addiction, which cannot easily be overcome during the course of a community service order.
Will the new community payback order lead to improvements?
I am quite convinced that the new order as outlined and the timescales that pertain to it give an opportunity to those of us in community-based social work to address our responsibilities by ensuring that orders start quickly, and by being clear with offenders about their responsibilities and what actions will be taken if they fail to comply. That must be within a framework of providing necessary support to offenders who have underlying difficulties, for example by providing addiction services.
What opportunities will the new order give you that you do not already have?
It provides for a substantial tightening of timescales, which sends an important message from the courts to the public and to offenders about the commencement of new orders. We support the view that orders should be started and should finish quickly. The current arrangements provide for the work to commence within three weeks; under the new arrangements, that period would be reduced to one week. Current legislation allows one year for completion of a community service order; the new guidelines suggest that orders should be completed within three to six months. It would be in the interests of justice and of the efficiency and effectiveness of community-based social work if, alongside that, local practices took due cognisance of their responsibility to enforce compliance and to ensure that offenders who fail to comply are dealt with swiftly.
The new order will also provide an opportunity for the imposition of electronic monitoring, if someone is taken back to court for breach. As Mr McQuillan said, if an offender is in breach currently, the court either allows the order to continue or considers sending them to prison. The imposition of electronic monitoring, with the support that the community payback order will provide, may be sufficient to help some offenders to move away from non-compliance towards compliance.
Offenders are not complying at the moment. I return to the point that orders will be made as a direct alternative to custody. How many last chances do people get?
At present, compliance rates are about 75 per cent. We cannot assume that people generally do not comply with orders. The breach rate is about 25 per cent.
I understand that it is a bit higher than that. Your figures may be more up to date than mine.
Yours may be more up to date than mine.
Are the figures that you have given those for the Fife and Forth valley area?
No.
We will sort the matter out.
There is some confusion about breach. Mr McQuillan is correct: the completion rate for community service is probably much higher than the breach rate, because people who breach community service orders are taken back to court, where a sheriff decides whether to terminate the order and send the offender to custody, to take other action or to continue the order. If the order is continued and the offender is given a chance to finish the sentence, the breach still counts. Often the figure that is reported as the breach rate does not reflect the number of people who successfully complete community service.
The figures may not be inconsistent.
What do you think of Henry McLeish's suggestion earlier this morning that people should start their community sentence on the day on which it is given?
People who are given custodial sentences are taken away on the day, so what has taken place is highly visible to the public. It is unfortunate that, occasionally, when someone is given a community sentence, the public perceives them as having got off, which is clearly not the case. I support the view that it is important that something visible is done on the day. Under the arrangements that are being discussed with the Scottish Government, an order will be served on the day on which the court makes its decision. A social work representative will have the opportunity to discuss the order's parameters and the obligations that it imposes, and to make arrangements for the offender to start work within five days.
I was interested in Mr McLeish's suggestion that there should be more frugal or targeted use of social work resources. He gave the specific example of social inquiry reports being used less often to assist in sentencing. What do you think of that suggestion?
I do not have the statistics to hand, but I think that the number of social inquiry reports produced in Scotland is about 40,000. There are discretionary reports, which sheriffs may request, but in some circumstances reports are required by statute.
How will the bill address the public perception that community sentences are a soft option? What else needs to be done to improve understanding of, and confidence in, community disposals?
There is much evidence that community service orders are meaningful and beneficial to individuals and communities. The ADSW has embarked on a 12-month public relations strategy, which will help the public to understand much more about social work and criminal justice. There is an on-going process in which we need to engage.
There is much to be done to raise the profile of and levels of understanding of community-based disposals. CJAs very much welcome the proposed requirement for consultation about the undertaking of unpaid work in communities.
That is very interesting: thank you. I think that the committee would benefit from seeing a copy of the survey. I would certainly appreciate seeing the results.
I was about to say that that would be useful. What was the size of the sample?
The survey sample was 3,500 residents, which was considered to be a reasonable size.
You said that awareness was raised. It is certainly useful and valuable to raise awareness—I would not say otherwise—but it is not the same as changing perceptions about whether community service is a soft option. Was there any impact on that?
I would prefer to defer that question and respond later, if I may, because I received the results only late yesterday afternoon and I have had only a quick read of them. I would not want to mislead you about what the survey did or did not say.
That is fair enough.
I will make the survey available.
That is an entirely appropriate response.
It has become clear that there is agreement among the panel about the importance of the community dynamic and the perception of community service. If I have picked this up right, there is also agreement about the formal requirements of community orders, such as that they must start quickly and that there must be robust enforcement if they are breached. The cast-iron test is whether these things work. Many of us have significant concerns about the effectiveness of some of the current community orders—for some individuals, at least. How good are community orders at the moment? What has to be done to make a significant difference to the reoffending rates of people who undertake community service, other than the formal matters of getting the orders to start more quickly and enforcing them more satisfactorily?
Although reoffending rates across the piece are high and we would all like them to be lower, the reoffending rates for community service are the lowest recorded; they are lower than the rates for those who receive prison sentences and considerably lower than the rates for those who receive periods of imprisonment and also—
You are dealing to some extent with a different tranche of prisoners—or, rather, people who have been convicted—are you not?
Not necessarily, because many individuals who receive community service have served custodial sentences, and vice versa. Those who serve short-term sentences and those who receive community-based disposals are similar—they are the same group. We know that the reoffending rates for those who receive community service are lower.
We are, however, talking about reoffending rates of something like 42 per cent, if I recall correctly, which is still pretty high, given the expense involved.
The critical test of any order is the reoffending rate. We must accept that premise. When we analyse the effectiveness of sentencing and community disposals, we must consider the reoffending rates. There are a couple of caveats about how we do that, however. This goes back to statistics again, but our analysis is not yet as good as it must be. The information that we currently have about reoffending rates perhaps tells us how many people reoffend, but it does not tell us about the actual level of reoffending. We might measure the number of people who reoffend, but those who reoffend might be doing so at a reduced frequency or they might, for all we know, be committing more serious offences. We need better analysis of what we mean when we say "reduced levels of reoffending". Are we talking about people who reoffend once or more or about the level of reoffending? Do we include in our discussion analysis of the seriousness of the offences? I do not think that we do, at present. The figures are misleading, to some extent.
That is a useful analysis—although it was not quite what I asked for, which was where you think there are major gaps.
The community justice authorities have been tasked with reducing reconviction rates. Obviously, someone can reoffend but not be caught, which is why we talk about reconviction rates. The aim is to reduce rates by 2 per cent across the whole range of disposals, including custody. The most recent figures that I have indicate that there is a reconviction rate of 42 or 43 per cent after two years.
That is right.
I understand that the rates for prison and probation both run at about 63 per cent after two years. One of the biggest, most immediate gaps that we had in Lanarkshire, as shown by the figures, concerned short-term prisoners. They were in and out, on remand or because of short sentences. Nobody touched them. Most of them were men, and they were not prioritised in relation to child care, health or social work—they were beyond social work as they were not statutory cases. They were tried on probation and community service. The police picked them up, but they were released and caused immense problems for the communities that they returned to—drinking and committing breach of the peace. Basically, they were lawless. They were not working, they were not part of society and they were going in and out of prison. That was the case at Barlinnie, and now it is the case at Addiewell. That group of people were not just caught and reconvicted; they were caught so many times in one year that they were a nightmare. We were not touching that group with disposals at all.
The witnesses must have many social work and CJA contacts across Scotland, and there must be examples of good practice in different local authority areas. Can you send us further information on that? I see that the witnesses will.
We provided written and oral evidence to the Finance Committee on our concerns about the bill's financial memorandum. We are concerned that the baseline for calculating the cost of community payback orders was the funding that is currently in place for probation orders, community service orders and supervised attendance orders. Those disposals are not sufficiently funded at present, therefore that fault has been carried forward in calculating costs for the new order. That is our first concern.
Does that not pale into insignificance in comparison with the sheer cost of paying for 20 or 30 per cent more community sentences? I presume that we are talking about interventions at the more expensive end, given that you are trying to do something effective with people who would otherwise have gone to prison.
Angela Constance and Henry McLeish mentioned the number of social inquiry reports that may be required. The cost of those may not be high, but the important thing to remember is that the money for community payback orders is money for working with offenders to reduce the chance of their reoffending. Background reports for the courts are costly, as they involve six hours of a qualified social worker's time. If the issue is appealability—if the sheriff asks for a report so that the decision will be harder to appeal—that would be an inappropriate use of social work. It would not be using the process to tackle offending; it would be using it for the sake of the court.
I accept that point. I have, perhaps, sent you off in the wrong direction. Do you not also have to take account of the increased number of sentences and the need to fund and support them? Do you accept that the level of intervention would have to be high if it is to work?
Yes, I absolutely agree.
Do you mind if I make one other, brief point, convener?
No, please carry on.
In their evidence, the ADSW witnesses talked about supporting a resource scoping exercise to ascertain accurate unit costs for community service and other community sentences. Were you asked to do that, in some way, during preparation of the bill? I presume that the Government approaches you for that sort of information.
That goes back to what a CJA colleague said. We are given allocations under specific headings and the probation allocation is based on the cost of a standard probation order. However, 56 per cent of all probation orders have additional conditions, some of which—particularly group work programmes or community sex offender group programmes—are very intensive, and the supervision of high-risk offenders can be very intensive. We therefore support what CJAs have said—we do not have accurate costings.
Whatever else comes out of the bill, community payback will not involve a standard probation order in most instances, at least in terms of new people.
That is correct.
I remind members that the Finance Committee will report to us on the financial issues relating to the bill in due course.
I had intended to ask about how drug treatment and testing orders could cause confusion with the drug treatment requirement in community payback orders, but Mrs Peattie rather effectively addressed that point earlier. I will therefore move on to another question.
I think that you mean Mrs Craigie.
I keep doing that, Cathie.
I am used to it.
I apologise.
We are almost returning to the previous point. Our concern is that people talk about programmes, but programmes are expensive. If resources are not available for programmes to be put in place, they will become a wish list; they will exist in people's minds more than in reality.
I want to return to something that we discussed earlier and to the evidence that we received from the sheriffs last week. They stated that short custodial sentences can be effective and that the current use of such sentences is appropriate. What are your views on that?
I imagine that a sheriff on the bench with a number of cases every day will not want to reduce their options. I see exactly where they are coming from, but the question why Scotland has the third-worst custodial rate in Europe remains. Is it because we are much more aggressive, abusive or antisocial than people in other European countries? Nobody has yet been able to convince me that that is the case. The use of short sentences must therefore be questioned. I am not denying that using them is justified and that in some cases there are no other options—and the opportunity to use them has been left in the bill—but the problem is simply that they are being used far too frequently.
A year ago in October, I attended an ADSW conference, which obviously was full of social workers. A sheriff in the audience—I cannot remember where he was from; it may have been Dundee—stood up and talked about short sentences. He said with a lot of feeling that, with certain offenders, he was left with no option but to give some respite to the community by handing down a short custodial sentence. The social workers applauded him, because they knew exactly where he was coming from. He did not want to hand out such sentences, but he did not think that he had any alternative. He was as frustrated as everybody else in the hall was that that was the only tool left to him. Perhaps, sadly, the issue is not short sentences but our inability to deal more smartly with offenders.
Can we hear from the social workers?
There is no doubt, as Jim Hunter has pointed out, that a range of agencies and individuals in Scotland are deeply concerned about the continual growth in the use of short sentences. I do not propose to comment on or criticise individual sentencing decisions, but I think that it would be unusual if sheriffs turned up and said, "Our sentencing decisions are wrong." There is no doubt that there is a consensus that many of the growing number of short sentences that are being issued are not successful in terms of reducing reoffending or changing people's lifestyles or patterns of offending.
The bill seeks to amend the custody provisions in the Custodial Sentences and Weapons (Scotland) Act 2007, prior to those provisions being brought into force. The political thinking of the Government is that amending that legislation will help to create an effective regime for managing offenders. What are your views?
The CJAs agree with your statement.
It is not my statement; I was paraphrasing the Government.
I beg your pardon. The CJAs agree with what you have just said. There is, however, concern about the timescales within which changes could be introduced. Clearly, there will be considerable resource implications if offenders serving sentences are to be routinely supervised on release or if they receive sentences that combine prison and community service.
In the shorter term, will the changes impact on criminal justice social work services?
We agree that the provisions should apply to offenders who are sentenced to one year or more, but that should be the case after a phasing-in period, in which supervision initially applies to those who are sentenced to two years or more.
We support that.
As we have no further questions, I thank the members of our panel for their exceptionally useful contributions.
Meeting suspended.
On resuming—
Good afternoon, ladies and gentlemen. I remind those who were not present this morning that it is important that mobile phones are switched off so that they do not interfere with the proceedings. Those who have not switched off their phone should do so now.
The point that I want to make is about the linkage between community justice authorities and community planning partnerships, which has a direct impact on how we manage or deliver certain services in the community. That has been the experience not just in the Fife and Forth Valley community justice authority area but in other CJA areas. The issue is perhaps complicated by the community planning set-up—I accept that that differs from one local authority to another—but there is also perhaps a lack of understanding among some people in the Society of Local Authority Chief Executives and Senior Managers about where the CJAs should sit. Some in SOLACE take the view that the CJA should be part of the community safety partnership. Although community safety is part of our remit or role, I feel strongly that we should be at the community planning partnership level to deal with the more strategic policy setting. We deal with not just the antisocial behaviour management side of things but health, education, employability and so on. In the opinion of Fife and Forth Valley CJA, that needs to be articulated a little bit more at the top. We need a better understanding of where we should all sit together.
Thank you—that is now on the record.
I am the secretary of Devonvale Hall—
Could you perhaps give your name—[Interruption.]
I am sorry. I am Elma Mitchell—is that your telephone?
Yes, it is. [Laughter.] Mega-embarrassment.
There will be a short custodial sentence.
I am the secretary of Devonvale Hall. We run the hall in Tillicoultry and we have the criminal justice boys to help us. They do an exceptionally good job; we could not run the hall without them. However, they have only one vehicle, and there can be only five of them for each supervisor. That means that a lot of the boys are not out helping the community. I feel that a lot more money should be put in, so that the boys can have another supervisor, and so that they can have two more vehicles. That would be the bottom line.
Thank you for that. You have raised a resource issue for the local authority and the CJA. Your point is well made.
Is there demand for people to do more work, but not enough resources even to allow them to do the work that there is at the moment?
We use the young people regularly. They clean the hall and set it up for the next function, and they look after the grounds. They do virtually anything that we ask them to do. Only two of us run the hall during the day, but we are poor pensioners and we cannot do it all. The young people—although they are not all young—have been absolutely exemplary and a great help to us in the three and a half years during which we have run the hall.
Do you believe that more communities could benefit from such work?
Yes, more communities could benefit, but more resources are definitely needed.
As there seem to be no further points at the moment, we will move on to take evidence from our final panel. After that, we will perhaps hear more points from members of the public. We are keen to do that.
Meeting suspended.
On resuming—
We will now hear from our final panel of witnesses, who represent the Scottish Consortium on Crime and Criminal Justice. The members of the panel are Professor Fergus McNeill, who is professor of criminology and social work at the University of Glasgow; John Scott, who is chairman of the Howard League for Penal Reform in Scotland; and Professor Alec Spencer, who is from the University of Stirling and was formerly the director of rehabilitation and care on the board of the Scottish Prison Service. I thank you all for coming, gentlemen; it will be invaluable for us to hear your evidence.
Good afternoon, gentlemen. In your written evidence, you state that the purposes of sentencing, as set out in the bill,
The difficulty with the way in which the bill is drafted is that it simply lists a range of purposes that sentencing might serve. The list is familiar, covering exactly what is found in similar legislation or in the relevant textbooks in various jurisdictions. It provides no coherent rationale that a sentencer might employ when thinking about which principles should apply or have priority in particular circumstances, or how to choose between different purposes of punishment or sanctioning that might conflict in certain ways.
Can you make any practical suggestions that would improve the bill?
One of my suggestions is covered not in the submission from the Scottish Consortium on Crime and Criminal Justice but in the submission from the Scottish centre for crime and justice research. It would be helpful if we stated an overall purpose of the sanctioning system, under which the separate principles could be subsumed and to which they might refer. For example, some jurisdictions might have an overarching statement that the criminal justice and sanctioning system should serve to promote the existence of a just, decent and fair society. Although that sounds bland and general, it allows at least some way of looking at how specific principles are applied in particular cases and how they connect to one another.
I detect a resistance to generate a hierarchy, but I will push you on the issue. I suggest that society would like to minimise the tendency to offend in the first place. By definition, once someone is in the justice system, that opportunity has passed. Would a reasonable priority be to minimise the incidence of reoffending? Would that find some favour as an overarching principle?
Yes and no. It is a laudable objective for the system to pursue, but if adhering to the principle allowed disproportionate sentences—perhaps even incapacitating sentences of a duration that was not merited by the gravity of the crime—to be applied, that would be contrary to the interests of justice. Although reducing reoffending is necessary and desirable, I would not have it as an overarching principle. A better approach than putting the reduction of reoffending first is to try to approximate to fairness and justice in the first instance, before thinking about the specific outcomes that we might pursue through a properly proportionate penalty.
You made a fair point about the list of principles being indiscriminate—we realise that it is. Policy requires some kind of prioritisation, or it is not policy. I take your point that minimising reoffending is probably not the overwhelming priority—it occurred to me that capital punishment is the most effective way of reducing reoffending, with transportation possibly coming next. However, is there a risk that if we go for fairness we will end up with a principle that is so wishy-washy that it allows anything and is no longer a principle?
I do not agree. We can be robust in creating opportunities for people to make reparation—or pay back, in the language of the bill—without that necessarily meaning that priority is given to reducing reoffending. The example that you heard from the member of the public was not first and foremost about the extent to which community service reduces reoffending; it was about the valuable public service that people provided.
On whether the reduction of crime should be set out as a purpose of sentencing, it is a mistake to believe that the criminal justice system can cure the ills of society. It is the ills of society—inequalities, deprivation and so on—that are primarily responsible for levels of crime.
We have heard an erudite discussion about the merits of including in the bill the purposes and principles of sentencing, but what does the panel think about the practical application of those principles? In Scottish legislation in recent years the trend has been clearly to set out principles—without applying a hierarchy to them—that were intended to be used by the practitioners who would use the legislation to intervene in a way that would have an impact on other people's liberty. I am thinking about the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.
I agree. You provided good examples—we can also include section 16 of the Children (Scotland) Act 1995, which enshrines important principles that are intended to govern the judgments that are made by key decision makers in the relevant system. I am in no way against the articulation of principles in the bill. Indeed, I do not think that the bill goes far enough in articulating how the principles might best be put into operation by the relevant practitioners.
Will they not have to provide evidence of how they have applied the principles?
Yes, although that can sometimes be done rather too easily. Since the change in the bail laws, sheriffs have to give reasons for granting or refusing bail. In some situations—I am not saying that this is universally the case—it is clear that not much more is done than ticking boxes. In fact, a form with the boxes is provided to the sentencers. Obviously, they want to get through the business, but there is a danger that sentencing is reduced to a mechanical process or a case of the sentencer saying, "I've taken rehabilitation into account—of course I have," rather than stopping to think how it features in the sentence.
Having dealt with the somewhat esoteric issue of purposes and principles, we will move on to a more practical level and deal with the proposed Scottish sentencing council. I note that the witnesses do not have an agreed position on the proposal, but we will pursue it with them individually.
Good afternoon, gentlemen. As you know, the objectives of the proposed sentencing council are to promote consistency in sentencing, assist the development of sentencing policy and support transparency in sentencing. Do the proposed measures represent significant progress on the current position? As you do not have a collective view, we will start with Professor Spencer.
With the convener's indulgence, I will start somewhere else if I may. Why are there proposals for a sentencing council? Because the Scottish Prisons Commission talked about recommending a prison population level of 5,000, and sentencing lies somewhere behind that. The first thing that the Government and the Parliament need to decide is the appropriate prison population level. Such levels have been decided in other countries. For example, Finland decided as a matter of social policy to reduce the numbers in prison and, over a period, set about reaching its desired level through legislation, sentencing and the interventions that the state provided. It reduced its prison population by three quarters.
Will the sentencing council aid that, to draw you back to the original question?
Thank you. I was going to say that, therefore, the proposal for a sentencing council is a case of using a sledgehammer to crack a nut. I am not sure that I completely favour a sentencing council, because we have to get the number of people in prison down, and judges have to fit in to that framework.
How would you reduce the number? You say that the sentencing council would be a sledgehammer to crack a nut. What would be your much more sophisticated tool of preference?
I think that judges should sit down together and work out how they are going to reduce the number of people in prison. They need to say that only the most serious of crimes warrant imprisonment. I certainly agree with the proposal in the legislation that sentences of less than six months should not normally be custodial.
One of my colleagues will come to that, professor, but that was an interesting comment. Can we now move on to Professor McNeill?
Are principles, and is a council, progress? In my view, yes. It is helpful to go back to the Scottish Prisons Commission's "Scotland's Choice" report and think about the context that it provides for the discussion of the measures in the bill. The report suggested that paying back in the community should be the default position and that, rather than thinking about imprisonment and alternatives to imprisonment, we should think about such community payback and alternatives to that. It is about trying to invert what is at the centre of our sanctioning system and our judicial consciousness, for want of a better expression.
I am sorry to interrupt, but, in your view, does imprisonment have a place? If so, what is that place?
I was about to go on to say that it does. "Scotland's Choice" states explicitly that imprisonment should be reserved for offences that are so serious that no other sentence is appropriate, and for situations in which there is a significant risk of serious harm to the public that must be dealt with through the detention of the offender. It says—
If I may interrupt again, what about a situation in which someone offends time and time again, such as a burglar—although perhaps not one who is involved in the theft of a masterpiece of fine art? Is there not an argument that a custodial sentence would, in the end, have a salutary effect?
I do not know that there is evidence for the argument that a custodial sentence would have a salutary effect.
What is the evidence against it?
Well—the fact that burglars recidivate at such high rates in spite of sentences of imprisonment being handed down to them.
I have one further question. Do you agree that a sentencing council should be advisory rather than anything else? If you do, you will be agreeing with the Lord President and Lord Cullen, who gave evidence last week.
Is that intended to encourage or discourage me?
That is, of course, a matter entirely for you. I would not constrain you in that way.
No, I do not think that such a council should be merely advisory. If it were, it would be too straightforward for judges to depart from the advice that the council issued.
Is that jurisprudence not in place at the moment? That is what the sentencers argued last week.
No. At the moment, there is a system in which, after the fact, through an appeals process, guidelines come to be issued or appeal court decisions might have some effect in moderating individual sentences and also in communicating messages to the wider community of judges. However, that leaves us vulnerable to jurisprudence developing only on matters that happen to come before the appeal court. That is not a rational way to go about establishing a sentencing policy—it is at the mercy of events as opposed to being principled and thoughtful. I would much prefer guidelines to be developed in advance to set a framework.
Do you refer to grade-related criteria, as we used to call them?
There are criteria for each grade and for each separate module that I assess. The designers of the module will have indicated what it was trying to achieve. I apply to each individual case both the general guidelines on grades and the specific guidelines on the outcomes that we are after. Moreover, I willingly and happily subject my individual professional judgment to moderation by my colleagues internally in the university and externally in the academic community. I am talking about important decisions that affect my students' career prospects and futures, but those decisions are in many respects far less important than the decisions that sentencers make every day in our courts. However, the process of moderation and the guidelines that are produced in advance of the decision making to which sentencers are subject are much weaker than the procedures that I am happy to submit myself to as a professional academic.
The analogy is very good although, as you say, not perfect.
I am on the sentencing council sceptic wing of the consortium.
Is that the wing that has more members?
It is hard to say. I think that a lot of people are in the middle and that the two sides are about even.
You say that you are sceptical about the proposed sentencing council. Does that mean that you are wholly against it, or do you think instead that it should be modified and adapted in a way that makes more sense to you and meets your concerns and doubts?
It could be modified to ensure that it plays a useful role. It could be an advisory body rather than a body that issues guidelines. The relationship between the council and the court would require to be spelled out better than it is.
Would you say that, sometimes, the public's view is coloured by the proprietors of certain newspapers, who simply want to sell more newspapers?
Absolutely.
I absolutely agree with that, too.
As the only active practitioner present, you are not under common-law caution in respect of that answer, Mr Scott.
I agree that there tends to be public outcry about sentences being too lenient. However, there has also been outcry about sentences being too harsh, usually when someone who has been defending their property has injured someone, for example. Although there is not usually outcry about sentences that are seen to be too harsh, I assume that the courts' appeals process deals with the cases about which there is such an outcry. What are your views on that?
The appeals process deals with the majority of cases. When a client is charged with a particular offence, I can tell him what the sentence is likely to be, within a band, provided that the Crown has made the information available. However, there are judges who operate beyond the upper end and below the lower end of the band. The sentences that are imposed by those sentencers, whether they are exceptionally lenient or exceptionally severe, do not necessarily always end up in the appeal court—the Crown would have to decide whether to appeal if it thought that the sentence was unduly lenient.
You say that, because of your experience in this area, you can use the information that the Crown has provided to tell someone what sentence they are likely to get, within a band but there will be judges who will issue sentences beyond the upper end and below the lower end of that band. Does that statement not suggest that a sentencing council that produced guidelines would be a useful tool?
I am not sure that guidelines would be useful in that regard, as the appeal court already issues similar guidelines. Judges have a necessary degree of independence, and the sort of judges to whom I am referring will not change their behaviour based on sentencing guidelines, whether those guidelines come from the appeal court or the sentencing council, even if that results in repeated appeals.
Earlier, we heard that only some cases reach an appeal and result in a judgment being given, which results in an anomalous situation in which we have guidelines from the appeal court in some areas but not in others. If we had a sentencing council that issued guidelines, we could see clearly whether someone was continually sentencing too harshly or too leniently.
You are right to point out that flaw in the current set-up. The fact that a matter requires attention does not mean that it will necessarily end up in the appeal court.
You have hit on one of the reasons why I am generally in favour of the notion of a sentencing council issuing guidelines. Through the activity of such a council, we could achieve a coherence in our approach to sanctioning that does not currently exist. That coherence would be intelligible not merely to judges but to lawyers, defence agents, accused persons and—importantly—social workers struggling with the task of writing a court report and going to a court without being sure who is going to be on the bench or what that person might consider to be a suitable range of realistic penalties. We have ample evidence that social workers are struggling to come to terms with making a judgment about what is and is not realistic. Part of the reason for that is that they do not have a common framework or an expressly articulated framework for sanctioning to which they can look for guidance that might help them. I think that we can get better coherence and communication between the relevant professionals if we have stated principles and guidelines.
Professor Spencer, would you like to add anything?
I think that inconsistency is useful, if we have an independent judiciary, but, on the other hand, that usefulness depends on the inconsistency not being too inconsistent and being able to fit into a coherent system that everyone can understand and there not being mavericks.
On that very point about the independence of the judiciary, do you therefore agree with the argument that a sentencing council might undermine or inhibit that independence?
Again, that depends on the format. If the council is advisory, it will provide guidelines but will not necessarily instruct. We are in Alloa, and I am pleased that, if the Government statistics are correct, the court in Alloa has the lowest level of custodial disposals. However, other courts have higher levels. So be it. That depends partly on the decisions of individual sheriffs. If sheriffs and judges were constrained and told what they had to do, that clearly might fetter their independence. They must be able to judge individual cases, taking into account the individual circumstances, the nature of the offence and the offender and putting all that together. As we have heard, the judge must also consider reports from social workers and find out about the backgrounds in trying to reach a reasonable outcome. That is what is required.
Is it not the case that having a set of guidelines, with the ability to depart from them, would provide a framework that would give consistency and clarity and all the other things that we have discussed but would also give the correct balance in relation to judicial independence?
That is part of the answer, but the bill raises a slightly more vexed constitutional question. How I read the bill is that it is not trying to interfere with judicial discretion in individual cases. It will leave decisions in the hands of the judges, but within a framework of guidelines that the council will produce. The question is under what authority the council will produce the guidelines. Although the Parliament in all sorts of ways sets frameworks, limits powers and establishes duties of judges already through legislation, will the sentencing council act with the authority of Parliament when it issues a guideline or will it, to an extent, act under pressure from the executive arm of government? What precisely will its relationship be to Parliament and the Executive? Further, the council's relationship with the appeal court is not entirely clear from the bill. Those issues require clarification.
Given that my preference is for a council that is an advisory body, questions of independence do not really arise.
I have one final point, just to nail down the issue. If there were to be a sentencing council and it was not going to be advisory, what proposals would make it acceptable? Professor McNeill made some points about the make-up of the council. Should the balance be changed? For example, it has been suggested that sentencers—judges and sheriffs—should make up the majority on the council. Should it be subject to the appeal court judges, as has also been suggested? Professor McNeill questioned the proposal that the Cabinet Secretary for Justice would appoint members. Who else would appoint them?
There could—and perhaps should—be a role for Parliament in determining appointments to a sentencing council. Through that mechanism, the Executive's direct involvement would be moderated.
Professor McNeill has intimated who he would like to be included on the sentencing council. Does any other panel member have a view on that? Also, where should the balance of power on a sentencing council lie? Should the majority of members be judges?
I do not have a firm position on who should be in the majority. I can see why judges might think that the maintenance of judicial independence requires them to be in the majority. It is interesting to hear them talk about it. A job remains to be done in teasing out what they mean by "judges" in that context. As I see it, as the council's constitution is proposed in the bill, it will have five judges, although I am not sure that that is the view that the two senators took last week.
I would lean towards having a majority of judges on the sentencing council, if it were going to be more than just advisory, for the reasons of independence that Fergus McNeill mentioned.
I do not have a view. I share the view that Fergus McNeill gave.
Professor McNeill spoke about independence. Section 8, "Ministers' power to request that guidelines be published or reviewed", makes a number of references to ministers' powers. For example, it says:
Yes. It gives some pause for thought, although I do not want to suggest that the Cabinet Secretary for Justice or, more properly, Scottish ministers should not have input into the work of the sentencing council. That would obviously not be sensible. It all depends on how we interpret the vexed phrase "must have regard to". If that means "must consider, but can ignore", I am not too alarmed by section 8. If it means "is under some obligation to respond to"—if "must" means "must"—does that mean that the council must respond to the request but can respond in the negative? The practical effect of the section is unclear.
It is difficult to envisage the relationship. If there is going to be one, I suppose that the minister would hope that the council will have regard to any request that he makes. It is difficult to strike a balance; it will have to be one or the other. It will be difficult if, when the minister makes a particular request, the sentencing council says, "Well, we are independent," but the legislation says, "Well, sorry, you're not. You ‘must have regard to' a request." We cannot have our cake and eat it, can we? We have to decide one way or the other. Do you agree?
I am sorry, you will need to clarify—decide one way or the other between which two positions?
The phrase "must have regard to" is difficult. I appreciate your point that the Government must have some sort of relationship with the council, but it is difficult to envisage, because of that phrase, where the balance will be struck.
It would depend on what kind of referrals the Scottish ministers would pass to the sentencing council. If section 8 means that ministers reserve the right to refer to the council, for whatever reasons, particular practical or political concerns, then that is fine. It would be entirely appropriate for ministers to ask the council to consider such issues. However, if the section means that ministers would be able to say to the council, "You will now produce guidelines on this," I would be slightly more hesitant in saying that it was appropriate. I would like the council to be able to say, "We've considered the request for guidelines to be produced in relation to particular matters, but at the moment we have more pressing priorities." The council would then explain why those priorities were more pressing. The issue in question is the relative authority and power of the different arms of government.
The consortium's written evidence says:
I know—it is just not fair. I demand guidelines.
But you must answer.
Right. I will have regard to the question, although I may not answer it.
Does anybody else wish to comment?
No, I have nothing to add to that.
All right, I will move on to ask about consistency in sentencing. Evidence that the committee has heard, last week in particular, has suggested that more research is required to establish whether there really is inconsistency in sentencing. We heard this morning from social work representatives that there was evidence of inconsistency. That evidence came from Government statistics. Do you think that a sentencing council would produce consistency?
Would it produce consistency? Let me go back to the premise on which the question is based.
Would it produce consistency, and do you believe that there is inconsistency at the moment?
That is where I wanted to start. Do I believe that there is inconsistency? Yes, I do. What do I base my belief on? Several things. Let me first define consistency and inconsistency, as that was troubling for the senators last week.
We are getting deeper and deeper. Your response has not helped me to make any progress in my thinking about this. Although we might expect the Government to have to hand all the necessary research and information, anecdotal or otherwise, even the policy memorandum that accompanies the bill, in discussing public perception, says that there is no
That is actually very simple to explain.
Well, explain it.
There are two clauses in the relevant sentence in the report by the Sentencing Commission for Scotland. The first says that there is no compelling empirical evidence that inconsistency exists. The start of my answer agreed with that—it is impossible to provide compelling empirical evidence that inconsistency exists, because no two exactly similar but separate cases are ever sentenced. I agree with that clause of the sentence.
One danger that I see in this part of the bill is that it proposes legislation that attempts to end a perception of something, but legislation is not terribly good at doing that. An important part of the proposed Scottish sentencing council would be its work to explain what goes on. That can sometimes be difficult even for those who are involved in the system—it is quite a challenge. If the public are presented with fuller information, they will come down from a position of wanting hanging and flogging, but trying to get the necessary information is a challenge in itself.
Some inconsistencies might be explicable by local circumstances that determine sentencing policy. For example, Professor Spencer tells us that here in Alloa there is a very low ratio of custodial sentences. That presumably reflects on the fact that there is very little trouble in Alloa. [Laughter.]
You have been tried in the court of public opinion, convener.
I got exactly the response that I was looking for.
I am impressed with the personal experience that Professor McNeill has brought us, which I think reflects the experience of those of us who have been in practice in different courts—Kilmarnock has been instanced in that regard.
That is one implication of the bill. It is not easy to countenance a situation in which a sentencing council issues guidelines that are implemented throughout the courts with the exception of one or two judges, who are repeatedly appealed against when they refuse to comply with the guidelines and who do not provide satisfactory explanations for departure from the guidelines. Because of judicial independence, are they simply allowed to remain in office forever? There would be considerable pressure in such cases to do something about such judges—to get rid of them if they are not going to change. That is a dangerous piece of ground.
Is it, or is it not? The issue is quite difficult in some ways.
It depends. When I agree with a sentence I am not terribly troubled about it, but if something is inconsistent it attracts my attention. My fear is that judicial decisions could be the focus of adverse comment, perhaps because of a failure to comply with guidelines that had come about through intense public or political pressure or ill-judged comments about a single case. Such guidelines would potentially not be just but could not be resisted by the appeal court because of the dynamic whereby the proposed Scottish sentencing council had the upper hand.
Is there a risk of what we might describe as defensive decision making by judicial persons? The fear of medical negligence processes can lead to a defensive approach taking precedence over sensible decision making.
There is certainly a risk of that.
I agree with John Scott. If a particularly recalcitrant judge continually refused to react to guidelines or appeals, questions would be asked about their professional competence. I would have grave anxieties if the decision to discipline that judge rested with someone other than the judiciary, but that does not mean that there ought not to be an internal discipline process in the profession, as there should be in any profession, to manage practice that is out of kilter with accepted norms.
We are in dangerous territory, but there would be situations in which a judge's repeated behaviour would require to be considered if they were to continue in the job.
The Judiciary and Courts (Scotland) Act 2008 provides for such situations.
These issues are perhaps more central to our consideration of the bill. The Scottish Prisons Commission said in its report:
I agree whole-heartedly. We rely far too much on imprisonment, which seems to be the sanction that we countenance imposing repeatedly, irrespective of the evidence of its ineffectiveness. That might be because an offender has no choice but to comply with imprisonment, whereas all sanctions in the community require an element of co-operation if they are to work.
My question was about the implications of the Prisons Commission's approach to short-term sentences and what it means for the way in which the courts operate and for the facilities that need to be put in place to deal with additional community sentences.
The genuinely radical aspects of the Prisons Commission's report have come into the Criminal Justice and Licensing (Scotland) Bill in only a refracted and partial way. For example, the three-stage approach to sentencing that is articulated in "Scotland's Choice" is not in the bill. The provision for the use of progress courts that was envisaged by the commission is not included in the bill in the same way. Progress courts are an option that sentencers may consider when a community payback order is imposed, but the commission envisaged that every community payback order would involve the offender accounting for their progress in public in court. Progress courts were intended to be specialist courts, using particularly trained judges who understand the problems of people involved in persistent offending, the complexities of the process of supporting those people to change and the realities of managing issues of compliance constructively. The bill includes no provision for the creation of a specialist court.
I will come back to that after asking your colleagues about the resource issue, which is central. Is there agreement that there must be significant, short-term but up-front resource to kick-start the reforms and to make them happen? I know that Professor Spencer has views on the issue.
I support the commission's recommendation that custodial sentences be limited to those who require them—serious and violent offenders. Such sentences should be used to deal with serious offences and for the protection of the public. Community disposals should be the default position: we should talk not about alternatives to prison but about alternatives to community disposals, which should be the option for most people.
I think Nigel Don would be grateful for a bit of clarification on that point.
Can you just clarify that number—the 23 point-whatever-it-was days?
It is 23.25 days.
I will not worry about taking it to significant figures any more than you would, but I would like to know whether that is the number of days that the individual actually spent in prison on remand and after sentencing, or whether it is just post sentencing.
It is post sentencing. If the remand is being rolled into that, it is counted in a different way.
So that figure is for after the sentencing.
It is for after the sentencing, but, of course, one does not work with offenders until they are sentenced.
I realise that. Is it possible that those who generated that statistic could also tell us what the average remand period was? It need not necessarily be this instant, but although we have established what the number means it is frequently misunderstood. We need to know what the total numbers are, or the number that you gave will not mean much.
Perhaps you can get that figure. I might find it within a few minutes; it might be in the Scottish Prison Service annual report. The statistics come from the SPS statisticians—perhaps your committee can get those details.
I am sure we can—thank you.
We must also seek the statistics on the actual sentence that was imposed, which in the case of a 23-day sentence would be about three months, bearing in mind that so many people are released after serving 25 per cent of their sentence, albeit that they might be tagged.
I am sorry to jump in ahead of John Scott, but I have some numbers on resources that might help to provide a frame of reference. The proposal to implement the Custodial Sentences and Weapons (Scotland) Act 2007 at a cut-off point of one year, at which point the new release process kicks in, is costed at about £47 million. Unless I am wrong, that figure is somewhere between a half and a third of the total current budget of criminal justice social work services.
That is helpful, but I will query one further relevant aspect. As you mentioned, the convener talked about community respite, which is an important aspect—perhaps not in the prison sense but in the sense of effectiveness of disposal to stop people committing offences.
Again, that issue is not unconnected to resource questions. The Prisons Commission report, for example, referred to an 80 per cent increase in a decade in the volume of reports that social workers are writing. That increase and the effects of the release reforms in the Custodial Sentences and Weapons (Scotland) Act 2007 mean that social workers in the community are getting busier and busier writing reports for court and managing people coming out of prison.
A summary of that information would be helpful. Do other witnesses have other thoughts about the community payback orders?
The question of the effectiveness of community penalties—and the issue of resources, which ties into it—is crucial. In fact, it is one of the issues that I am most concerned about. We should bear in mind that there is no law to prevent the proper funding of what is going on in criminal justice social work and that the range of community penalties in the different parts of Scotland is probably as wide as that in any other country.
What do the witnesses think of the suggestion that was made by a sheriff at last week's meeting that short custodial sentences are effective and their current use is appropriate?
I have not read the Official Report of that meeting and I do not know who said that, so I will not comment on that individual's remarks. I think that the use of short-term and very short-term sentences is complete eye-wash. It has no effect at all on reducing crime. We know from research from around the world that where prison is used on its own—in general, short-term sentences involve only prison—crime increases by between 1 and 3 per cent. I can give the committee references to that research later. We know that when people are sent to prison for a short while, it is likely to be disruptive in a range of areas. A person's tenancy might be lost, their employment will certainly be lost, and their family support might diminish. If they have financial problems, those problems will be worse when they come out of prison.
Professor Spencer, given your background in the Scottish Prison Service, can you comment on how prison officers at the coalface view short-term sentences?
I do not think that they think that short-term sentences are very helpful. We understand why people are given long-term prison sentences—they have committed a serious offence. Staff have time to get to know such people and to try to work out what their issues are, to assess them, to work out what the risks are, and to try to sort out interventions. It is to be hoped that they will have contributed to a change in the approach of such people when they come out of prison. However, if a person is in prison for the average of 23.25 days, for example, there will not be time for such things. The prisons are overcrowded. There are two or three prisoners to a cell, and large numbers of them are processed and moved elsewhere, so staff do not have the time to get to know them individually. They certainly do not have the capacity to do individual interviews and to assess prisoners and work out which interventions would be best for them. Very short sentences are a complete waste of time. Prison staff are frustrated by them and by people going in and out of prison. The staff have to service those people by providing bedding, laundry and food and making all the other necessary provisions, therefore they cannot do the job that they want to do, which is about making society safer.
I will try to be brief, although the question is an invitation to talk about desistance.
Feel free to adopt Professor Spencer's arguments.
I will add a very brief comment, if I may. First, the sheriff could not possibly have had in mind reducing reoffending as the measure of short custodial penalties' effectiveness. I have not read the Official Report of last week's meeting, but I presume that that cannot possibly be what he or she had in mind. I say that because three things help people to stop offending: getting older and becoming more mature; developing social ties that mean something to them; and changing their view of what they are about as a person. Short periods in prison do not help with any of those three things. Prison takes away responsibility and inhibits the development of maturity; it damages and often breaks already fragile social ties; and it confirms a negative narrative of a person as an offender, a prisoner and, often, a hopeless case.
The evidence last week that defended the continued use of short-term sentences was pretty apocryphal. Obviously, each individual sentencer has their own experience. A sheriff might sentence the odd offender to a relatively short custodial sentence and never see them again. However, that experience is not a terribly good basis on which to justify the continuation of something that we know does not work very well at all in the vast majority of cases. Even in such individual cases, we do not know what happened when the people came out of prison.
A form of payback is already in place by virtue of community service. What evidence is there that community service is more effective than short-term sentences? You have said that short-term sentences are no good, but will you clarify what percentage of them are no good? Are we saying that all those people who receive a community disposal such as community service, which is in effect the same as payback, become model citizens?
Payback is a bit different from community service, because, as set out in the bill, it involves more flexibility and a range of measures that are not currently applied to community service. However, we know that, in general, the reconviction rate with community service is significantly better than that with imprisonment, particularly short sentences, but we do not know—
What is the percentage?
The two-year reconviction rate for people who are given community service is 42 per cent, as against 60-something per cent for people with prison sentences in general and an even higher rate—which escapes me—for people with short prison sentences.
A sheriff who gave evidence last week talked about the prolific or repeat offender who appears before him regularly and who poses a problem for the community. Are we suggesting that no short sentences should be given to such an individual, who might already have participated in payback programmes or who might not want to comply with those programmes? What will we do in such instances?
There are two ways to approach that. First, are we content that the opportunity that we have provided for an offender has been sufficiently resourced and properly supported, to give it the best possible chance to work? The evidence that the committee has heard from sheriffs suggests problems with the resourcing of community service in some areas. One problem is that I am not entirely convinced that we can always attribute the failure to take the opportunity simply to the offender.
I think that the question has been answered, so I ask Professor Spencer to be brief.
We are talking mainly about young people, of whom we lock up far too many in Scotland anyway.
Mr Martin's question was general.
Prison sentences do not work. We lock people up, but when they come out of prison, they are still prolific offenders. If it costs us £40,000 a year to lock somebody up, we would have a much better bang for our buck and a much better chance of reducing their reoffending if we spent that £40,000 on them in the community. There are organisations that provide intensive support to and supervision of offenders and which show much higher levels of success. Of course that costs more, but nothing like the amount that it costs to keep someone in prison.
Professor McNeill referred to the fact that the Criminal Justice and Licensing (Scotland) Bill will amend the Custodial Sentences and Weapons (Scotland) Act 2007 prior to its coming into force. Are your concerns purely on financial matters?
Far from it. Where do I begin? The matter is dealt with in the submission from the consortium and, at length, in the submission from the Scottish centre for crime and justice research. I will put it bluntly: the 2007 act is a dreadful piece of legislation, which will have very negative consequences for the operation of the prison service and criminal justice social work. The money that it will cost to implement it would be far better spent on making community payback work. The money must be spent up front on community payback and not on a peculiarly muddled and ill-considered set of release reforms.
It is not in the least intemperate; it is an honest view. I am aware of what you said in your submission, but my question gave you the chance to say it for the Official Report. Do I take it that your colleagues concur with that view?
Yes.
Not only do I concur, but I would be even less temperate in stating my view than Fergus McNeill was. If the provisions were to be implemented, Scotland would be less safe. We do not have enough people to do risk assessments. We would need a parole board that was about 20 times its current size. Instead of dealing with the most serious crimes, it would have to deal with some of the least serious ones. The legislation is a waste of professional resources that could be better targeted towards making Scotland safer.
Thank you.
I am a volunteer from Clackmannanshire with too many volunteer positions to mention. The view of the community in Clackmannanshire of the Alloa court system is that the sheriff does not do anything. People who visit the court for various reasons—for a day out or whatever—think that the public are allowed to run riot in the court building. It seems that there is no way of saying, "Right. You must shut up or get out."
Thank you. The individual difficulties, as you perceive them, at Alloa sheriff court are not a matter for the committee. As you will appreciate, we are here to conduct an evidence-taking session on the operation of the bill, and your views will be taken into account in that regard.
You asked about the benefits of community service. Many of the people who have worked for us have come back to us and said, "Thank you for what you have done." A lot of them had to be taught how to use a hoover, because they did not have a clue how to do so. We have taught them how to garden and so on. We are continually trying to educate them. There is a benefit in their doing community service.
Thank you. Does anyone else wish to speak?
Having spent 10 years as a member of visiting committees at our two local prisons, I am pleased that the issues that we are addressing today are being addressed, and I am pleased to be part of that discussion. I believe that the committee's visit is the first positive step towards creating an interface with the community.
Thank you. Are there any further contributions?
Earlier this afternoon, you talked about the community safety partnerships. In some areas, the communities have become effectively involved in the partnership teams but, in many other areas, that has not happened. Are there guidelines that could be given to the partnerships to help them involve the community? Clackmannanshire's council for voluntary services is involved in our local partnership, but it would be useful if members of community groups such as neighbourhood watch groups or the tenants and residents federation could be told how they can get voted on to the partnership and become properly involved in it as well. Would it be possible to get guidelines that the whole of Scotland can work from?
I cannot answer your question, but Government ministers will be able to read your comments in the Official Report.
Previous
Subordinate Legislation