Justice 1 Committee, 19 Nov 2003

Meeting date: Wednesday, November 19, 2003

Official Report 242KB pdf

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Sentencing

Okay. We move on to item 4. I refer members to the note that the clerk has prepared, which sets out the background to the remit for the sentencing inquiry.

When we discussed whether we would take on a sentencing inquiry, I think that we agreed that we would need to be specific about the particular area of sentencing that we want to consider, otherwise the inquiry would be extremely broad. Following the evidence that we have heard this morning, do members have a particular aspect of sentencing into which they think it would be worth while conducting an inquiry?

If members feel that there is not enough evidence at this stage to warrant our embarking on a big inquiry into sentencing, we have the option of holding an inquiry into the resourcing and efficiency of the police, as we agreed at our meeting of 17 September. I remind members that we asked for research to be undertaken on the situation in other jurisdictions. It will be some time before we receive that and members will also have to think about timing.

As members know, the sentencing commission has been formed. We know that it is going to start with an examination of bail and remand issues, so members may decide to focus on what it is doing. We also thought that the debate on alternatives to custody that was held in the chamber last week would highlight the broad issues that have not been covered to date.

The range of possibilities is wide so I ask members to focus their minds on specific areas on which it would be worth while for us to spend time.

The issue of short sentences cropped up today, in last week's debate and in Her Majesty's chief inspector of prisons for Scotland's report. It does not appear to be in the remit defined for the sentencing commission, but it is part of the background to issues such as effectiveness of sentencing. Given what Neil Hutton said, there seems to be a question mark over who gets short sentences and the sort of cases that are involved. Andrew McLellan commented on how ineffective short sentences are for rehabilitation.

Perhaps there is a gap there. The sentencing commission is not considering short sentences, but a number of agencies have flagged up the issue. We might also consider the alternatives to short sentences. Safeguarding Communities-Reducing Offending gave us costings during our evidence on the budget. We heard that the cost of keeping in prison all the people who are sentenced to less than six months is about six or seven times the cost of serving them with various community orders. There is an issue about whether we have the capacity to shift people from short sentences to community orders. There might be quite of lot of scope for investigation of that, without the inquiry being too broad.

You mentioned the cost of community orders. It occurred to me during the debate last week that the figure for restriction of liberty orders in the former Justice 1 Committee's report on alternatives to custody is £4,800. For some reason it stuck in my mind that when the former Justice 2 Committee dealt with the Criminal Justice (Scotland) Bill, the Scottish Executive gave the different figure of £6,000.

There seemed to be a range of amounts, depending on the type of community disposal, from £1,500 to £6,000 for drug treatment and testing orders. Some disposals in the middle of the range cost about £3,000 or £4,000. The cost depends on the order that is being used.

Yes, but I was talking about figures for the same sentence, which was a restriction of liberty order, or tagging order. In the inquiry into alternatives to custody, the Scottish Executive gave the figure of £4,800, but in evidence during consideration of the Criminal Justice (Scotland) Bill—and I have checked the Official Report—it gave the figure of £6,000. I mention that because I am going to ask why there is such a disparity. It makes me think that some figures have just been plucked out of the air. I do not have a lot of confidence in the figures that anybody is using. A sub-group of the criminal justice forum, including the Scottish Executive, the Scottish Prison Service, North Lanarkshire Council and SACRO, prepared a report on short-term sentences, which was published in 2002. Work has been done in that area.

My feeling is that, one way or another, sentencing has been given a good airing, given that the sentencing commission is considering it and given the alternatives to custody debate and the reports that you mentioned. We are also waiting for information to come back. My preference is to move on and consider the resourcing and efficiency of the police. It would be worth while for us to consider that.

Having been on the Justice 1 Committee and the former Justice 1 Committee for four years or so altogether, I am conscious that every year we consider the issue of prison numbers—the figures are still bad. We got to the stage of carrying out an inquiry into alternatives to custody, but we are now to have a sentencing commission and I would not want the committee to be caught up in a matter that should be within the sentencing commission's remit.

We must address the question of what we expect of our prisons when people are given custodial sentences. We should move on, so that we consider not the symptoms—which, to some extent, are about the people who are sentenced to short prison terms—but what we expect of the prison service. I think that there is a bigger issue about the central role that the service plays in the criminal justice system and the fact that we so often look to it to provide solutions to issues around crime. Perhaps that links in with the idea of having a single correction agency, but we should not carry out an inquiry into that—it is for the Executive to propose a policy that we can scrutinise.

The rehabilitation of prisoners is being considered at Westminster. Do we expect prisons to deliver effective rehabilitation? We know that they have often not been able to do so. That is fundamental to how we address the problem. If we examine what is happening in other jurisdictions and link that to the international comparative data, we can see that in some jurisdictions prisons are not regarded as having a rehabilitative role, but are seen as a deterrent and a punishment. In such jurisdictions, the rehabilitative aspect is dealt with in the community.

I am thinking off the top of my head, but I think that we potentially have an opportunity to open up a new area by considering whether the central role in rehabilitation that the system gives to prisons is appropriate. We should consider how to reform the delivery of rehabilitation in the context of measures such as community disposals.

That is an interesting idea. When Andrew McLellan gave evidence at the joint meeting of the Justice 1 Committee and Justice 2 Committee, I was struck by his comment that rehabilitation programmes are suffering, but when we tried to press him on precisely which programmes are suffering, I had difficulty seeing where real damage has been caused. The performance indicators show that programmes are at least being completed, although we have no information about their quality. There seemed to be a disparity between what Andrew McLellan said and the information from the performance indicators.

Are you suggesting that, rather than take up Professor Neil Hutton's suggestion and consider what prison is for, we consider what we expect from prisons in relation to rehabilitation?

I might not have articulated my ideas fully, as I have been thinking off the top of my head. I am trying to say that the main argument for alternatives to custody is that such alternatives deal more effectively with offending behaviour. However, the driver for such measures is prison numbers.

One of the key roles that the Scottish Prison Service is meant to have is to rehabilitate offenders and address offending behaviour—as well as to act as a deterrent and to provide public safety. It is said that the main reason why short-term prison sentences do not work is because they do not address offending behaviour.

Should the prison service have the role of addressing offending behaviour? If we are going to go down the route of pushing more alternatives to custody and addressing offending behaviour, should we do so in a different way? One of the submissions describes what happens in Scandinavia, where the role of dealing with offending behaviour has been taken away from the prison service and given to other agencies. I know that that would be a shift from the current policy, but I wonder whether, in the discussions that are taking place around prisons and prisoner numbers, the prison service is regarded too much as being central to the system. We should try to get away from that.

Michael Matheson is suggesting something really fundamental but I am not sure that now is the time for it. I have visited only two of the prisons, but I think that prison staff would be really shocked if we wanted to take rehabilitation from them when they are just getting to grips with it.

I agree with Michael Matheson that shorter sentences are given for a different reason. I am concerned that although we seem to have general agreement on lots of initiatives and a lot of research, as Professor Hutton said, we need the political will to push them along. It is difficult to say how, but I would like the committee to choose to do whatever will push matters along, rather than just spread into something new again, because it looks like the Justice 1 Committee has done an enormous amount of work in the past four years and it would be good to see it through to fruition.

Marlyn Glen makes the good point that in choosing what to do, the principle should be to do things where we can make a difference by pushing things to happen on which there is consensus.

I will pick up on Michael Matheson's point. I tend to agree with Marlyn Glen that we want to do something that will be more likely to effect change. Michael Matheson's suggestion is a bit more ethereal than that; it is more about the general concept. Perhaps I have got that wrong, but taking the role of addressing reoffending and offending behaviour away from the prison service presumably would not work in relation to long-term prisoners and specialist prisoners, such as sexual offenders. Getting at them when they are in a defined place gives the best hope of addressing offending behaviour, rather than waiting until they are back out in the community. There might even be scope for a different approach depending on whether one is dealing with short-term or long-term prisoners. The issue is detailed.

That is not really what I am saying. I am not saying that that role should be taken away from the prison service. I am saying that there is a need to examine the central role of the prison service in our justice system and to examine what we expect of it. Whether or not prison officers deliver the services, how should they be managed? How do we deal with the issue? That is the problem. We know from the evidence that the prison service is not good at managing that. External agencies can work with long-term prisoners. A range of models can be pursued. Services do not have to be delivered in the prison service.

I agree with much of what Michael Matheson said about the big underlying question. A lot of what has come out is saying that we do not have a clear idea of what prison is really for. I am not sure that that is not a good question that we should examine and answer. However, it is a big question about a fundamental shift, and I am not sure that we have the time to answer it.

One of the issues that came out of the previous Justice 1 Committee's alternatives to custody report—which also came up in discussions that I have had and in the alternatives to custody debate last night, which I attended—is that nobody knows whether alternatives to custody are effective. Everybody keeps telling us that they are more effective, but there seems to be no empirical evidence that says, "Yes, they are definitely more effective. Here's the research that says we took this group of prisoners and one went to prison and one was given an alternative to custody, and now we can prove that alternatives to custody—non-custodial sentences—are more effective." As far as I can see, we do not have that research.

In the debate last week, several members made the point that the type of person who is given a custodial sentence might well be—and probably is—different from the type of person who is given a non-custodial sentence, so to compare the two is like comparing apples and pears. I still do not understand whether we have a clear picture of whether one disposal is more effective than the other.

The other question about alternatives to custody concerns the figures that Margaret Smith mentioned. Between £1,500 and £6,000 is the range that we are always given for the cost of alternatives to custody, whereas prison currently costs £27,000 per prisoner per year in Scotland, or so I understand. From that, it would seem clear that it is much cheaper to give people non-custodial sentences. However, are non-custodial sentences really cheaper in the broader sense? If such sentences are not more effective, they are not necessarily cheaper. If those who are given non-custodial sentences reoffend, are such sentences cheaper to society as a whole?

I am not clear whether non-custodial sentences are actually cheaper than custodial sentences. That fundamental issue underpins the whole idea about alternatives to custody. If we have not yet answered the question whether alternatives to custody are more effective and really cheaper, I am not sure that we have moved the debate forward any.

I think that research on behaviour management—from schools, for example—shows that taking people out of the usual context to teach them anger management or to provide cognitive behaviour therapy does not help. What is needed is to work with people in situ—that is, in the community. The pupil may be fine when they are taken out and talked to, but they might still behave in the same way when they are put back into the classroom. What they need is to be taught how to behave in the classroom. In the same way, prisoners have to learn how to behave in the community, because that is where we want them not to reoffend. We should also take on board the idea that an alternative to custody that involves working in the community can be a real punishment. I think that Michael Matheson will find that there is research on those issues, which I will try to find.

I am interested in what Michael Matheson said. I take Stewart Maxwell's point that the subject that he has raised is huge, but it is obviously linked to sentencing. From the notes that I scribbled earlier, I think that Professor Hutton gave us a steer on that when he said that the issue of short-term custodial sentences needs to be linked to—I think that I am right here—what prison is for and what punishment is for.

I agree with Margaret Smith and others about the need for our inquiry to keep within the time constraints while being able to make a difference and add to people's knowledge. I think that we could ensure that that happened if we had a brief inquiry into short-term custodial sentences. That would allow us to develop some of the thoughts that Michael Matheson has expressed and consider the issues that arise from them. If we went for a brief inquiry into the effectiveness or otherwise of short-term custodial sentences, we would be able to consider both that issue and the deeper, more philosophical issues that would naturally arise. Having said all that, I think that we should take the steer that Professor Hutton gave us in his evidence.

I agree that it is important to examine the effectiveness of alternatives to custody and of short custodial sentences. I suggest that, instead of coming at the issue from the same angle, we could move on by considering the subject in terms of the efficiency of the police. We could get good and worthwhile information from the people who are on the front line in dealing with reoffending. The police might want to look at the efficiency of their having to go yet again to deal with someone who has already been in prison for a short-term sentence. The person's behaviour may still persist because the underlying cause of that behaviour—for example, drugs or alcohol abuse—has not been addressed.

In that way, we could approach the issue from a different angle but still consider the kind of things that we would want to address in an inquiry into the effectiveness of short-term custodial sentences. Advertently or inadvertently, the police play a major part in sentencing, given their knowledge and experience of having to react to the situations that arise. I do not think that the issue has been adequately considered in the debates around alternatives to custody that we have had so far and it might not be examined by the sentencing commission. An inquiry into that issue would complement the important points that others have raised about short-term sentences.

I surmise that the committee will at some point want to pick up the inquiry on the police; we are debating whether to do that now or later. I take your point that we have to establish whether we can now do something productive, as Marlyn Glen suggests, to develop the work that has already been done. We must remember that there is a lot of incomplete research and there are reports already on the table, so we must continually ask ourselves what we can add to what has already been done. Bill Butler said that we might follow Professor Hutton's steer, which is, in a way, connected to Michael Matheson's suggestion that we examine expectations of prison. If we narrowed the focus, we would effectively go in the opposite direction from the one taken in the report into alternatives to custody: we would be asking what prison was for. We could narrow the focus further and ask what prison does to reduce offending—we do not know the answer—and what it should be doing.

We should obviously follow Margaret Mitchell's suggestion of conducting an inquiry into the resourcing and efficiency of the police, but that is something for a later stage. Most members have given their views on the way that we should be going. Perhaps the police would be interested in giving evidence to us, which would allow them to make their input. In that way, we could perhaps accommodate all the views in the committee under a heading such as "the effectiveness and efficiency of short-term custodial sentences" or something a bit snappier. We want to add something and that would be a way of doing so, given the time constraint.

I would be happy with Bill Butler's suggestion that we take the police's evidence on short-term custodial sentences with the proviso that, sometime in the future, we conduct a more in-depth study on the police.

We can do that, but we can let the committee examine both issues without committing ourselves to an inquiry, as long as that is manageable given the other work that we have to do. I feel that, whatever we do, we need a watching brief—and probably a reporter—on the sentencing commission. As Stewart Maxwell pointed out, we do not yet have a clear picture of what is happening, but some of that picture might begin to emerge as more work is done and I would like the committee to keep an eye on the various things that are going on. That might mean a periodic report so that we can remind ourselves that something has happened—perhaps when the commission issues its first report—and so that, if the committee wishes to pick up other points, it has an opportunity to do so. If we say that there is nothing else that we can do now, we would not give ourselves a connection though which we could come back to the matter.

You mentioned the constraints of the timetable, convener. If we go with the wording that Bill Butler suggested, which I agree with, and produce a report examining the effectiveness of short-term sentences, what will our time frame for that be? If we take on board the suggestion that we should consider the police—I agree with that, as there is a lot of scope for us to consider issues in the police—it may be useful for us to start thinking sooner rather than later about what aspects of the police we might want to focus on. If there is any preparatory work or research that we could be doing for that, we could get working on it sooner rather than later so that, when we come to do the work on the police, we will have done some of the preparatory work already. It might even be useful to talk to the police to find out whether they think that there are issues that it would be particularly useful for the committee to consider.

We can work round the decisions that the committee makes, if I am clear about what its priorities are and in which order it wants to do them. Obviously the legislative timetable is fixed, but sometimes there might be a slot at the end of a meeting if we do not have a full day of witnesses, or we could just choose to take half an hour or 45 minutes to hear from the police, for example.

To address the questions that Margaret Smith, Marlyn Glen and Stewart Maxwell have raised about how we move on, I think that we have to monitor all aspects of sentencing, including the sentencing commission and proposed alternatives to custody. We are going to get a report back on the research into other jurisdictions. In time, it might be quite good if we have a reporter on that to keep us informed.

Bill Butler and Michael Matheson have suggested that we take slightly different angles to the subject matter. Perhaps we could examine Michael Matheson's question about what we expect from prison and rehabilitation in the context of what Bill Butler said, following on from Neil Hutton, about what prison is for in the short term and the long term. I am concerned that if we consider only the short term, we will be looking at some of the areas where we believe that prisons should not be used anyway.

The delivery of services within the prison system is different for long-term and short-term prisoners. Rather than the prison officers, many external agencies provide services to short-term prisoners. We have to get a flavour of what the Scottish Prison Service is doing. We could focus on short-term offenders, but we might get a skewed view of what is happening in the prison system if we did that.

If we take that a stage further, what agencies would you like to hear from? What sort of information would you be looking for?

We could ask the Scottish Prison Service to give us more detail on what it does with short-term prisoners. Are there any programmes for those prisoners and, if there are, what do they consist of? It would be natural to follow that by asking the SPS what it does with everyone else. What is the content of its programmes? Who is evaluating whether the programmes rehabilitate people? Is the SPS aiming to reduce offending behaviour? Where in the programmes is the SPS trying to do that? We could then consider the suggestion that short-term prison sentences are not effective because they are short and that in order to address offending behaviour, the offenders need to spend longer on the programme. The suggestion is that people are in prison for too short a time to make any progress.

We should also consider whether the SPS is an effective agency for addressing rehabilitation.

Once we have the information about what is being done in prisons and who is involved, we could take that question on.

Could we do something on the effectiveness of rehabilitation programmes in prison? That is a title that would allow us the flexibility to compare and contrast and consider some of the more complex and philosophical issues that Michael Matheson has raised. It would also let us look at the practical and everyday issues with regard to the merits and demerits of attempts to rehabilitate offenders within prison.

That is a good suggestion, which covers many of the issues that members have raised. We can leave other people to make the picture clearer for us. Doing what Bill Butler suggests would allow us to tackle the major question of what we expect from prisons and to compare long-term and short-term sentences, which in itself is quite a narrow focus and could make for a short inquiry. I do not think that we would be debarred from kicking off by getting preliminary information from the police for a full-scale inquiry into resourcing.

Could we include the voluntary sector as well as the Prison Service? That sector has a major part to play in rehabilitation.

It looks like a consensus is forming. There are other obvious issues such as throughcare and drug rehabilitation programmes, but now that we have a focus, we can present the committee with possibilities and timings for taking evidence. We can decide whether there is any space for us to hear initially from the police. That would satisfy everyone's desires.

Do members want to consider appointing an adviser?

I think that we should.

We will investigate who might be an appropriate adviser. As the weeks go on, it gets more difficult because there is so much activity around some of the subject areas that it is hard to find an adviser who is not involved elsewhere. We will investigate the possibilities and come back to the committee with some suggestions.

I remind members that there is a visit to HMP Greenock on Monday 24 November. Our programme of visits has been pretty hectic, but I am sure that members have found them to be useful.

Our next meeting will be in the chamber on Wednesday 26 November, when we will be taking evidence on the Criminal Procedure (Amendment) (Scotland) Bill from the Scottish Executive and Crown Office officials.

I submit my apologies for Monday; I think that I am going to be in court then.

Oh dear. We will not ask why.

I have to give evidence about who nicked my handbag.

Margaret is getting personal experience of the criminal justice system and I am sure that she will share it with us.

All those visits to courts have been very useful and I will try not to fall asleep.

I give my apologies as well. I will not be in court, but I will be elsewhere.

I am sure that the Justice 1 Committee will be well represented at the visit.

Meeting closed at 12:36.