Item 2 is an evidence session on the Scottish Government’s amendments to the Prisoners (Control of Release) (Scotland) Bill. Those with an interest in the bill will recall that the committee agreed to take evidence on the amendments as they will, if agreed to, make significant changes to the bill.
I stress that this is an evidence session. We have another such session tomorrow, which will be followed by stage 2 proper, with amendments moved and so on. That is not happening today.
I welcome Michael Matheson, Cabinet Secretary for Justice, and Scottish Government officials Philip Lamont, head of the criminal law and sentencing unit, and Fraser Gough from the parliamentary counsel office. I understand that the cabinet secretary wants to make an opening statement.
No, convener. I am happy to go straight to questions.
That is excellent—you are winning friends. We will go straight to members’ questions.
Good morning, minister. I am grateful for how you have responded to the committee’s report, but will you give us the thinking behind and more evidence on the six-month period for supervision that you have settled on?
The committee outlined in its report that it wants a period of community-based supervision to be provided at the end of someone’s sentence. That view was based largely on the evidence that the committee heard about the impact of cold release. I gave an undertaking to the committee that I would consider the matter.
We have lodged amendments that will create a period of compulsory supervision in a prisoner’s sentence when they are released back into the community. The suggestions on what the period should be in the evidence that the committee received varied from three months to a year. Clearly, there is a broad spectrum of views on how long the period should be.
I am conscious that I have received evidence that the six to 12 weeks after a prisoner is released are the period of risk in relation to ensuring that the prisoner is reintegrated into the community with the right services and support in place and the right connections made with agencies and organisations. I have considered how we can achieve that in a three-month period and how to allow greater scope for prisoners who require a slightly longer period of support in the community and in which any additional issues can be picked up.
After considering the committee’s evidence and the issues that the period is meant to address, we saw six months as a reasonable period in which to address those matters. However, the issue is about not just time but the quality of the work.
It is important to recognise that, even though someone will have a six-month period of compulsory supervision when they are released from prison, a significant body of work must be done for long-term prisoners before they are released. That work takes place in the prison estate and includes the reintegration plan. The right connections need to be made so that they are established prior to an individual’s release.
Six months is a reasonable time to address any issues that arise when a prisoner is back in the community, alongside the reintegration plan, which the prison will have started in the build-up to their release.
Given that some of these people will be the most intransigent prisoners, who have not engaged at all, so the Parole Board for Scotland has felt that they could not be released, are you satisfied that your proposal is strong enough?
Do you envisage a softening from the compulsory period into further support in the community at the end of the six months? You might not see a clear break, but perhaps there could be a shading of the support that was available following the compulsory period of six months.
On your latter point, part of reintegrating a prisoner into the community—particularly a long-term prisoner—involves helping to re-establish them in the community. Some of that re-establishment does not involve the statutory services; it concerns other aspects, such as employment, and it might involve other support groups. There may be benefit from making local connections to support and sustain the individual.
The six months will be a statutory period in which that work can take place. That is a fixed period when such intensive work can be undertaken. It should be ensured that the approach and the connections that are made are sustainable and will live beyond the six-month period.
If the court has concerns about when an individual is to be released, for example, there is the option of an extended sentence. The six-month period should be used for creating connections so that, when someone goes back into the community, they make sustainable connections that are not just for the six months.
Could you remind me of your first point?
Some written evidence has suggested that prisoners who might be released in such a way might not have engaged with the Scottish Prison Service as they served their sentence. That would perhaps be why the Parole Board thought that it was not appropriate to release them under parole. That group of prisoners might be quite intransigent and not open to change. Are you sure that six months will be long enough for them?
Such prisoners would get automatic early release at two thirds of their sentence under the present arrangements, and the Parole Board has no control over the matter whatever. They will now be in the prison estate for an extended period beyond the two-thirds stage, and it will be clear that, if they wish to receive parole release, they will have to engage with the appropriate programmes to address any issues as the Parole Board considers appropriate. There will be an incentive.
I am conscious of some of the evidence that the committee heard at stage 1. If a prisoner knows that they will automatically be released at two thirds, why should they engage? Why bother participating in programmes? That factor will be removed. The Scottish Prison Service expects and believes that demand for programmes will increase as a result of ending automatic early release. It is working on that principle, given that prisoners will no longer have that automatic release. I understand the point that you make, but we also get a benefit from reducing the scope for individuals to be released automatically, irrespective of whether they have engaged.
It is open to a prisoner with an extended sentence—who, under the proposed provisions, will have to serve their whole sentence in custody, and who might then have another year, two years or three years of an extended sentence—to choose whether to engage with services while they are in prison. They cannot be compelled to do so.
I am conscious of the need, which the committee has raised with me, to ensure that programmes are readily available and that prisoners who want to engage with them, which they are encouraged to do, can participate in them. I know that the Scottish Prison Service is pursuing that work now, on the back of the inquiry that the committee undertook on aspects of the issue in 2013. We are removing the automatic element at two thirds of the sentence, which means that, if the prisoners concerned want parole release earlier, they will have to participate in programmes to address their offending behaviour.
If I could ask finally—
Is your question on the same issue?
No—I am going to talk about resources.
Before you move on, I point out that, on one occasion when we had SPS witnesses in front of us, Colin McConnell made the point that the interaction with prison officers should not stop when the prisoner leaves prison. His view was that prison officers could have a role outside, just as social work could have a role inside, so that there is more of a melding, rather than a sudden break. Are discussions taking place with the SPS about prison officers’ role in following somebody who has been on a programme in the prison when they continue with it outside, and vice versa—social work following people in the prison?
That is not only being discussed; some of it is already happening. For example, at the tomorrow’s women centre in Glasgow, we have prison officer staff in the team in the community. They deal with women who have been in prison and who are back in the community—those staff work alongside housing, health and social work officials and the police to develop sustainable approaches to support those women back into the community.
Such work is going on, but we can certainly do more in that area. There is no doubt that prison officers recognise that their role is changing. As part of the work that we are doing in remodelling and taking a different approach to the female prison estate, we are looking at prison officers working in an entirely different environment from the one that they work in at the moment with female offenders. It will be a much more community-based environment, in which prison officers will be much more part of a multidisciplinary team.
Elements of that work are under way. Will more of it happen in the future? I certainly believe that things have to move in that direction.
Thank you—sorry, Alison.
I will move on to resourcing. For the measure to be effective, criminal justice social work services need to be adequately resourced. What consideration have you given to that in the context of the proposed changes to the bill?
In response to the committee’s recommendation, we have set out a range of figures that indicate the additional costs of the amendments for the prison estate, social work, the Parole Board and the other agencies that will be involved from the bill coming into force in 2016-17, say, right up to its being fully implemented in 2030-31. We have made it clear that we will meet any additional costs that are associated with the amendments.
However, as I have mentioned to the committee at least once, far too much of our resource in the criminal justice system is caught up in dealing with short-term offenders who go into and out of prison constantly. If we want to free up the resource in our prisons to allow them to deal much more effectively with long-term offenders—those who pose the greatest risk to our communities—we need to be much more intelligent about how we use our prison estate.
As Henry McLeish’s Scottish Prisons Commission set out, the estate must be used much more effectively to deal with those who pose the greatest risk to our community. Therefore, I want to consider measures that will reduce the demand on the front end of our prisons, not just so that we release resource that can be better utilised in the prison estate but so that we can utilise resources in the community setting much more effectively.
It will take time to reset the balance. I mentioned the work on the prison estate that we are doing in relation to female prisoners. We are also doing work in relation to the prison estate for male prisoners, with a view to using prison much more effectively for those who pose the greatest risk. We want to use alternative disposals much more effectively for short-term offenders who could be diverted from prison or who could serve their sentence in a much better and more appropriate way that is less resource intensive than their doing so in the prison estate.
Does Rod Campbell’s question follow on from that? John Finnie and Gil Paterson want to ask supplementaries.
I am happy to wait.
Good morning, cabinet secretary. I understand that we are talking about a manifesto commitment and that you are prepared to put up the money to meet it. We have been told that the cost will be £16.724 million by 2030-31. That is more than half the present budget for community justice, which is £31.8 million. You talk about only the people who pose a risk being in prison, but you must have a projection for offsetting the cost of keeping those offenders in prison longer, if the bill goes through. Can you give us that projection?
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The figures are based on the assumptions about what the bill provides for and they are purely to do with the bill. They do not take account of other changes that are to be introduced in the system, such as a presumption against short sentences, greater use of alternatives to custody, changes in sentencing practice, which the Scottish sentencing council will help us to address, and alternatives to the traditional custodial estate. The figures do not take into account a variety of things because they are purely to do with the bill.
I have a practical example of where we are. Polmont young offenders institution is sitting at half capacity because we are now much more effective at dealing with young offenders through diversions and alternatives to custody. That effectiveness will start to feed into the adult prison population and lead to progressive change in our estate. We could do other things to accelerate that and we are prepared to do them.
It would be overly simplistic to think that the figures that we have set out mean an additional cost that we will have to cover with additional money. With the other changes that we propose to make in the system, we will free up resource to be used better in delivering programmes for long-term offenders and more effective community disposals.
I cannot just switch off resource to the prison estate, because it requires that resource. I want the number of community disposals and alternatives used to increase, but we are in a period of financial restriction, so I have to find a balance. Some of the work that we are doing around the prison estate will release resource so that it can be used more imaginatively.
I certainly support that. I probably did not express my question properly. Is there any way for you to make a projection? For example, will we end up not requiring Polmont? Are there any implications that would ultimately reduce the top-line figure? We have had representations from organisations such as the Howard League, which says that we have been told that the direction of travel is to reduce the prison population. However, we are looking at a sum that is more than half the current sum for community disposals.
I was a wee bit surprised at the Howard League’s comments; it appears to be looking at the issues in isolation.
With respect, is that what you are doing when you say that we are looking only at what the bill provides for?
I am saying that the Howard League’s comments are based on the bill, but other aspects to our penal policy are about reducing the number of prisoners in the system. For example, our work on women offenders is about reducing the number of women in our prison estate.
We have to look at the whole issue rather than aspects in isolation. The figures that you have asked about were produced purely to illustrate what could happen if we introduced the bill and did nothing else, but we are not doing nothing else.
Are there figures on the horizon that would offset the cost? What sort of timeframe are we talking about?
It is difficult to say, because the figures are assumptions based on existing sentencing practice and current rates of offending behaviour. If those things change, the figures will alter. The prison estate has to work on assumptions and a range of variables around potential demand in the system, which it does not control. It is difficult to say that prisoner numbers will be at a certain level by a certain date, because there are many variables to take account of.
We can take forward the policy areas in a much more integrated way. We need to make sure that the provisions on community alternatives and diversions, for example, are much more closely linked to the way in which we pursue policy in the prison estate to utilise resource and apportion it to meet the different demands.
I am hesitant about getting into arbitrary figures because there are so many variables that it is challenging to come up with a specific figure that would be accurate in the long term.
My question is along similar lines. In early release at present, housing, social work services, welfare and benefits are in place and budgeted for. It is not your budget but somebody else’s—it is taxpayers’ money. There is no reference to that in your tables to allow us to get a picture of the real costs. We can see additional costs for the Prison Service, but if people are not in the community, which is what the bill will mean, they will be in prison and the money will not be spent in the community. Do you have any figures for the cost of all the services that will not be provided in the community but will be provided in prison?
There is a challenge for us in being able to provide those figures. We can provide figures for the Prison Service and criminal justice social work, because those are pretty much fixed costs that we can identify. The cost for individuals who are in the community depends on their status at a given point and what services they are engaged with, so we do not have the same general fixed costs. If you are asking me about the costs of alternative disposals against those of a custodial disposal, we all know that the cost of community provision is significantly lower than that of delivering services in the prison estate. However, because there are so many variables for an individual’s circumstances before they end up in prison, it is difficult to estimate what those costs would be.
Some of the figures are quite significant when we add them up, such as provision for housing, which local authorities need to make. There is also social work, which is also the responsibility of local authorities, and benefits, which are reserved. When we want to make a change, people just see costs going in, but they are not the real costs. We know the costs for the Prison Service, but there are also savings—I hate to use that word; “offsettings” is the right one. It would be worth setting those out to sell the reform programme to the wider public, because we are not being given the real costs.
It starts to become a bit artificial when we try to determine the actual costs, but there is an element of offset cost associated with someone who is in the community, who might not be in touch with criminal justice social work if they get housing benefit and other support. However, because individual circumstances are so variable, it is extremely difficult to come up with clear figures whereas, in the prison estate, we have fixed costs that we can clearly identify for an individual.
It would be overly simplistic to think that the £17 million is what the additional costs will be. Those are the additional costs if we do not take into account the offset that you mentioned and if we did nothing else in the system. It is simply not the case that we are doing nothing else and that is why I was a wee bit surprised at the view of the Howard League for Penal Reform on the matter.
Thanks.
Before I ask my main question, I have a small question on the six-month mandatory period of supervision. Some critics have suggested that, at the moment, we deal with automatic early release in a proportionate way and that moving to a six-month period would mean that we lose that proportionality and therefore distort sentencing. What are your comments on that?
I am not entirely sure that automatic release at two thirds of the sentence is proportionate because the Parole Board for Scotland does not have any control over it. However, parole release is proportionate. In considering an application for release, the Parole Board can determine whether it thinks that the person is suitable for release at that point, given their circumstances and, for instance, what programmes they are going through.
The six-month period is to ensure that we reduce the risk associated with someone reintegrating into the community and that we support them, because we know that there are particular risks when long-term prisoners move back into the community, particularly during the six-to-12-week period that was mentioned. The six-month period will allow them to re-establish themselves and allow for any individual measures that are necessary to support them in getting back into a community setting. I therefore do not view automatic early release at two thirds as being proportionate.
On 20 January, we heard some figures from John Watt of the Parole Board, who said:
“it is clear that those who are released on non-parole licence—at two thirds of the way through their sentence and without an assessment of risk—tend to be recalled in significantly greater numbers than those who are released on parole licence, where there is an assessment of risk.”—[Official Report, Justice Committee, 20 January 2015; c 24.]
You subsequently gave evidence on 3 March, and that evidence is incorporated in the amended financial memorandum, at paragraph 34. More recently, we have also received evidence from Dr Monica Barry indicating that those released automatically pose fewer risks than those released by the Parole Board. What would you say to that?
I have not seen Monica Barry’s research, so I cannot comment in great detail, although it appears to suggest that parole release is less effective than automatic early release, which I am somewhat surprised at. It seems to suggest that the Parole Board is in some way making things worse, and I would be surprised if that were the case. However, as I said, I have not seen the research in detail, so I cannot comment on it in depth. Once we have had an opportunity to look at it, we can consider those issues in greater depth.
The last time I gave evidence, we mentioned the figures for 2012-13, when 476 prisoners were subject to supervision in the community after parole release and 403 were subject to supervision in the community after non-parole release. The rate at which non-parole release prisoners breached their licence conditions was 37 per cent, compared with 5.5 per cent for parole release prisoners. That means that someone is in effect seven times more likely to breach their licence conditions if they receive non-parole release. Prisoners were five times more likely to be recalled to prison for breach of their licence conditions in that year if they had been automatically released rather than parole released. The figures for that year give a clear illustration of the difference, and you have also heard other witnesses refer to those differences.
At the very least, Mr Watt’s evidence suggests that, as far as recall to custody is concerned, both you and the Parole Board seem to be taking a different view from that of Dr Barry.
We are. As I say, I have seen only the headline figures, so I am a wee bit surprised, because Dr Barry’s evidence seems to suggest that the Parole Board makes the matter worse. I think that most people would be surprised at that, given the level of detail and consideration that the Parole Board gives to prisoners prior to release. However, the figures for 2012-13 give a good illustration of the difference over the course of a year.
I am getting a bit muddled here. The six months is compulsory, and people do the six months on licence as part of their sentence. Conditions will be attached to that licence, so if someone breaches them, they will be back in prison, I take it.
They would be recalled.
I just wanted to make it plain.
The conditions will be set by the Parole Board as well.
So what is the difference between that and parole?
It is similar to what happens when a person receives parole release. The board would consider what measures have to be put in place. For example, a prisoner can apply for parole after serving half of their sentence, and the reality is that the vast majority of long-term prisoners will receive parole release. In order to achieve that, there are certain things that prisoners have to go through before the Parole Board will come to a determination on whether they are fit for parole. When parole is allowed, the board sets conditions.
The difference with the six-month period is that it is to support prisoners’ reintegration into the community. The Parole Board can also set conditions to support their reintegration into the community.
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A person does not have the option of serving their entire sentence and coming out scot-free, as it were, with no conditions.
No. That is for the very reason that the committee highlighted in its report—because of the risks associated with that.
I understand now. Whoever a person is, if they do not have parole, they will come out after six months but will still serve a prison sentence under supervision out in the community.
They will come out six months prior to the end of their sentence, not after six months.
No. The six months is part of their sentence.
Yes. It is part of their sentence, to address the risks of going back into the community.
Yes, I understand now. A person will come out and not have finished their sentence. It will still be their sentence, but they will serve the six months in the community. They will not have the option of saying, “I’m just going to stay in prison for the next six months,” and then coming out and it will not matter.
Yes. That is in the sentence because that creates the legal provision in which the Parole Board can set conditions. If that is not in the sentence, there is not the authority to do that.
So it is about ensuring that there is reintegration.
Yes. It is mandatory.
I understand, although I know that it does not sound like it—at least I think that I understand.
Is Roddy Campbell finished?
Yes. I am happy to leave it.
The financial memorandum puts the cost of increased demand for prisoner programmes at only £171,000 by 2030-31, and the cost kicks in in 2019-20 at £43,000. Is it possible that there will be greater demand for prisoner programmes under the new regime, particularly if prisoners think that taking programmes will make them more likely to get parole? Are those sums really sufficient?
A question that my colleague Graeme Pearson posed some time back—I do not have the answer with me—indicated that around 100 sex offenders who had been assessed would have benefited from the sex offender programme, but they were not on it. Is it possible that, because of the changes, we will need to front-load the prisoner programme provision to ensure that there are not European convention on human rights issues, for example, because people have not been able to access programmes?
Those figures are assumptions that are based on a snapshot here and now of the implications. I think that the SPS indicated in its evidence to the committee that it expected increasing demand for prisoners’ participation in programmes as a result of the ending of automatic early release. The SPS has had its purposeful activity review, which identified issues with access to certain types of courses and psychological service provision, and it is about to commission work to look at taking those matters forward.
As I mentioned earlier, our biggest challenge in the prison estate is that so much of the resource is tied up in dealing with the churn of short-term offenders. Like any other public service, the Scottish Prison Service has to live within its budget, and that budget has grown ever tighter during this period of austerity. The SPS must deliver as many effective programmes as it can within its current budget. If we can release some of the significant amount of resource that is tied up in dealing with a lot of shorter-term offenders, that will release resources that will allow us to expand and develop programmes in the prison estate. There is a balance to be struck in trying to achieve that.
The figures are based on assumptions, and they could vary in-year and across several years. They are based on the present figures.
I hear what you are saying about short-term prisoners, but only around 10 per cent of the prison population consists of short-term prisoners at any one time. They go in and out, and the longer-term prisoners are there for longer periods of time. Even if we could deal with that situation, people will probably not participate in the prisoner programmes so much if they are there for only short periods of time. Would it address the balance if we could deal with that?
The proportion is smaller on a given day, but thousands of prisoners are in and out of the system over the course of a year. There is a big turnover. We should not underestimate the amount of resource that the SPS has to dedicate just to managing that. It has to be much more effective in dealing with it. As Henry McLeish said in the report of the Scottish Prisons Commission, that resource must be used much more effectively and be targeted at those who pose the greatest risk to our community. At the moment, a lot of the resource is tied up in dealing with those who pose the lowest risk, which means that we do not have the level of resource that we wish to have to help those who pose the greatest risk. That is not to say that a lot is not being done in that area, but of course we could do more. The resource could be used much more intelligently and effectively if we had less of that churn of short-term prisoners.
If the SPS review, which you refer to in the revised memorandum, identifies an increase in the need for provision of programmes—including psychology programmes, which are pretty important—that is considerably greater than we can provide for at the moment, will the resources be there for them?
If there are additional resource demands at some point, we will have to look at those and try to address them as effectively as we can, to ensure that the SPS can deliver the necessary programmes. That could be years from now, so I could be making a commitment that someone else may have to live with, but I am certainly committed to ensuring that we try to provide the necessary resources for the SPS to do its job as effectively as possible.
When the bill was brought before us, we talked about its aim of public safety and ensuring that long-term offenders do not go through cold release. We learned that people are very often cold released in the present system and that there is a case for changing the system for the public’s protection.
Sacro—formerly the Scottish Association for the Care and Resettlement of Offenders—talked about the balancing act and ensuring that we talk about public protection. It said that the mandatory supervision period could be only three months. It may make more sense to have a shorter mandatory period; it could make it easier to engage long-term offenders who do not want to engage if they are focused on a three-month period. I agree with Sacro that a shorter period may focus those people’s minds.
The evidence that you received from Sacro would have been largely on the six-to-12-week period that is often considered to be key for a prisoner going back to a community, when there are significant risks to manage.
We have tried to strike a balance. You have also heard evidence from people who think that the period should be a year, and some people say that the period should be proportionate to the length of sentence served, although I do not agree with that. The reason why six months strikes the appropriate balance is that, although there might be prisoners for whom the three-month period is sufficient, there will be prisoners for whom it will not be sufficient. The six-month period will give a level of latitude that will, I hope, address the issue of those for whom three months is not sufficient to deal with matters when they move into the community.
Having listened to the evidence that the committee received and the views that have been expressed, I have considered what is a reasonable timescale to deal with these matters. Six months is our preferred option, which I believe will be a sufficient period for reintegration into the community for the vast majority of prisoners.
I understand that it is a judgment call. However, the bill will not be implemented before 2019, so there will be plenty of time to prepare for this. We would have thought that you could concentrate the minds of service providers to ensure that a three-month period, instead of six months, is effective.
In time, people might say that the six-month period could be shortened. It is important to note that the release of a prisoner is not dependent on just that six-month period; the preparatory planning work in prison is important as well. For example, we know that housing issues can prove to be a deal-breaker for how effectively a prisoner can move back into the community and sustain themselves there. The work that we are doing in Perth just now on managing that more effectively involves a partnership between the housing service and the Prison Service. The ministerial task force on offender reintegration, which I head, is about ensuring that health, housing and a range of services work in a much more joined- up and co-ordinated fashion.
Section 2 of the bill is informed partly by our wanting to have flexibility on days of release in order to support the reintegration of a prisoner into the community. It is in all our interests to do everything possible for a prisoner who has served their punishment in prison to reduce the risk of that individual committing other offences, and the reintegration element is a key part of that. The reintegration plan will start prior to a prisoner being liberated from prison in order to get things planned and in place before they move back into the community.
The six-month mandatory supervision period will give us the added security of being able to recall an offender if we feel that their behaviour is unacceptable, but it will also enable a clear focus on the type of support that is necessary during that period.
This is my last question. Given the six-month mandatory period that will be delivered through the involvement of the Parole Board, can you say that you will have removed the word “automatic” from “automatic early release”?
The principal reason for the bill is to end the automatic right to early release after two thirds of a sentence has been served, and that is what the bill will achieve. However, we are also creating provision for a mandatory period of supervision in the community to support a prisoner’s reintegration into the community. As the convener correctly pointed out, it is not an optional but a mandatory period that a prisoner will have to complete. The long title of the bill needs to reflect that there is no automatic element to that, though.
Gil?
My question has been covered.
John?
Similarly, my point has been covered.
Finally, cabinet secretary—
Not finally, because I might have something to ask.
Sorry, convener.
What sort of discussions have there been with the Convention of Scottish Local Authorities on the implications of the proposed changes for local government, cabinet secretary?
The discussions that we are having with COSLA just now are around the Community Justice (Scotland) Bill, the reshaping of community justice and the creation of community justice Scotland. Part of that will see significant reform of the way in which we deliver community justice provision in the future. Discussing the impact of the Prisoners (Control of Release) (Scotland) Bill will be part of that overall approach.
Is that us? I did not have another question.
It was you being awkward.
I am not known for being wicked.
I thank you very much for your evidence, cabinet secretary. I inform members that we will take further evidence on the amendments from Professor Fergus McNeill and Professor Cyrus Tata tomorrow morning from 10.30 and we will consider the formal amendments on 2 June. Thank you very much.
10:43 Meeting suspended.