Justice 1 Committee, 30 Jun 2004

Meeting date: Wednesday, June 30, 2004

Official Report 216KB pdf

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Alternatives to Custody

I refer members to the note that the clerks have prepared, which sets out the background to a research report that was prepared for the committee on alternatives to custody in other jurisdictions. Members will recall that we decided that we would continue the work of the former Justice 1 Committee, following its report on alternatives to custody, by focusing on alternatives to custody in other jurisdictions. I welcome Susan Eley and Bill Munro, from the University of Stirling, who have carried out the research. I also thank Graham Ross, from the Scottish Parliament information centre, who supported them in their work.

I thank the witnesses very much for the work that they have done, for which the committee is very grateful. We might have some questions to put to you to focus our minds on the work that we need to continue. Is there anything that you would like to say before we start our lines of questioning?

No. We will leave it open to the committee.

I invite members to consider the interim report. It is recommended that we consider the jurisdictions of Finland, Sweden and Western Australia. Why were those three jurisdictions chosen? We originally considered six, but it was suggested that we narrow our focus to three.

The interim report that is before the committee is the product of our review to date, which began at the end of March. We looked at several jurisdictions across Europe, North America and Australasia, and the interim report is indicative of some of the jurisdictions that we looked at. In the first phase of the research report, we were mindful of concentrating on jurisdictions that either had succeeded in reducing their prison populations or had maintained their prison populations at a relatively low level compared with that in Scotland.

Following that review, we proposed three jurisdictions for distinct reasons. First, Finland is proposed because it has been used previously as a model for establishing good practice in other jurisdictions. For example, New Zealand used the jurisdiction of Finland as a model. There are several reasons why Finland has been particularly successful in reducing its prison population. Among the factors that have contributed are changes in penal theory related to criminal policy; political consensus that prison overcrowding was a problem that needed to be addressed; and changes in penal legislation.

We are interested in focusing on Finland primarily because it has been used as a model before and is seen as a site of good practice. We are interested not so much in replicating the evidence that is already out there, but in interrogating much more closely why Finland has seen such a significant reduction in its prison population—although, over the past three years, it has witnessed an increase in that population. We want to see whether there are any lessons to be learned.

The second proposed jurisdiction is that of Sweden. Sweden is of interest to Scotland because of two specific policy measures. Sweden's prison population has been more or less stable for the past 20 years. In the mid to late 1990s, there were notable changes in three-year periods. Between 1995 and 1998, there was a significant decrease in the prison population, which was followed by an increase in that population between 1998 and 2001. Subsequently, there has been a significant decrease in the prison population, which is attributable primarily to the policy measure of addressing the number of receptions to prison by providing, as an alternative to prison sentences of up to three months, intensive supervision orders that place people under house arrest and use electronic monitoring. The measure has been operating in Sweden for three years and that is why we felt that it would be a valuable jurisdiction to scrutinise in more detail.

The third proposed jurisdiction is that of Western Australia. Western Australia had an above-average prison population compared with the prison populations in the rest of Australia. It has instigated a package of reforms, the most notable of which is the abolition of prison sentences of six months or less. We feel that, as that policy measure is relatively recent yet established, it would be fruitful to concentrate on that jurisdiction and to consider that specific policy measure.

When you examine the other jurisdictions, will you consider the structures in those areas? For example, I believe that in Scandinavia a single-agency approach is taken to help to marry together alternatives to custody, the court system and so on. Will you consider structural reform and its impact on the implementation of policy? It seems that most of your work has been on policy and what is in place rather than on the structural aspects.

Finland is different from the other jurisdictions that we propose to study because the approach to penal reform there is culturally different. We have been considering that closely. We will be careful to examine not only technological changes such as tagging measures, but the economic and environmental factors, which include structural factors. We will be critical in our evaluation of what measures have been taken in the jurisdictions to see how transferable they are to the current Scottish situation.

Have you done or would you consider doing any work on the views of the public in the three jurisdictions? You have touched on the different culture in Finland. We have been told that in the jurisdictions there was political consensus that prison overcrowding was a problem that needed to be addressed. However, that is only part of the picture, because if we let people out of prison or do not put them in prison in the first place, a political consensus is also needed on the fact that we must do other things with them and ensure that they do not offend when they are not in prison—some people would say that one of the benefits of prison is that persistent offenders cannot offend when they are in prison. What has been the general public's reaction to the changes that have been made in the three jurisdictions?

That was not one of our main focuses in phase 1, but one of the major aims in phase 2 is to consider the changing trends in public attitudes—in the three jurisdictions and more widely—as a result of policy measures on imprisonment.

My second question is wrapped up in the first one. The reduction of the prison population is only part of the equation, because we must also consider what to do with offenders who are not in prison. You mentioned that the greater use of tagging in Sweden is married with intensive supervision orders. What effect has that policy had? Was more investment needed in local authority social work departments? What would be the consequences of such a measure in Scotland?

In the three jurisdictions, how effective have the measures been in tackling reoffending, which is one of the other major problems? Reducing the number of people in prisons will not be effective if we do not address reoffending.

A focus of phase 2 of the research will be to examine the resources that the new measures have required in the jurisdictions and to compare the resources that have been given to prison estates with those for community sanctions. We will scrutinise those matters closely. You are right that intensive supervision orders bring with them a burden of resourcing, which we will consider closely.

The third major aim of the second part of the research is to scrutinise the local evidence on effectiveness and to place it in the wider context of the global evidence on the efficacy of various community-based sanctions.

I know that you have just completed phase 1 of the research and that much of what we want to talk about will probably be dealt with in the next phase. I will lay out some issues and I would like you to tell us whether you will consider them. Do you know how many prisons there are in each of the three jurisdictions and what their capacity is?

I am not able to give you the exact figures at the moment.

In Scotland, one of the issues is the conditions in which we hold prisoners, which can be affected by overcrowding, slopping out and so on. That is perhaps a driving force for not locking up so many prisoners. Do we have any information about the conditions in which prisoners are held in the proposed jurisdictions?

It is fair to say that slopping out has not been particularly evident in the literature that we have studied so far, but overcrowding appears to be a concern.

So overcrowding is still a problem in those three jurisdictions.

It is a problem in those three jurisdictions and more widely throughout the jurisdictions that we considered.

I asked that because the conditions in which prisoners are held must be part of the backdrop to our work. That is a big issue for us in Scotland.

In most cases, the trends in serious crime in Scotland are rising. Do we know anything about the backdrop to that in the three suggested jurisdictions? Are serious crime levels falling or rising there?

The general trends in all the jurisdictions were similar—there tended to be a drop in crime trends overall but, within that, there tended to be a rise in the incidence of serious and violent crime and, in most European countries and in other jurisdictions, levels of less serious crime tended to be falling.

An issue that we covered as part of the research was the complexity of reading trends. In different jurisdictions, there are different ways of counting crime and different ages at which people are responsible for crime. We used victim surveys and prison numbers, but the prison numbers were not always that clear, because they tended to be just the average number of prisoners on a particular day. We found that it was very difficult to get entry figures. In the interim report, it was difficult to get a clear idea of trends on prison numbers. When we focus on the three jurisdictions, the picture will be much clearer, because we will have more time to get access to such figures.

If we were to abolish short-term sentences, we would be virtually opening the prisons and letting people out. That would reduce the prison population, and I suppose that the situation is that simple. Is there any way of monitoring the impact of such a decision? For example, in Western Australia, has there been an impact on the recidivism rate?

Given that the measure in question was taken relatively recently, it would be quite early to include such an assessment in the report. However, I believe that there are other jurisdictions to which we can look where similar measures have been taken to provide alternatives to short-term sentences other than direct release.

There is obviously an alternative, but I presume that, rather than an alternative being provided, people are just being let out of prison. For me, the question is what the impact of doing that in Scotland would be. Would we simply switch one sentence for another, or would the impact be positive? I know that you cannot answer that, but I wonder whether you will be able to find that out from your research on the other jurisdictions.

In the review, we will be able to unpick some of the complexity to do with the types of offenders who might be in that pool of early-release prisoners and the offences involved. We will be able to find out from the other jurisdictions what offences and what offenders early release would apply to. That links in to the question of the acceptability of those measures to the public and to victims.

I will start with a straightforward question. You have outlined why you chose Finland, Sweden and Western Australia as the three jurisdictions that you wish to examine. Will you say why you rejected the other three jurisdictions?

Spain was one of the other jurisdictions that we originally proposed. We felt that there were difficulties in getting access to the official documents and that the language difficulties would have implications for the timeframe. That was a purely pragmatic decision.

We were also interested in the Netherlands, but we believed that the body of evidence there could also offer something to the comparative review, by offering a contrast to the jurisdictions that were under study.

The other jurisdiction was Victoria, Australia, which provides a direct contrast to Western Australia. However, on our second and closer scrutiny, we felt that the cultural and historical differences linked to the judiciary in Victoria meant that it excluded itself from being directly transferable to Scotland.

I am quite surprised by that final answer and that there would be such a diversity of cultures between two parts of Australia, and between Australia and ourselves. Will you expand on your reasoning?

I would not argue that there are huge cultural differences between Australia and Scotland. Professor McIvor, who carried out that part of the review, felt that Victoria in Australia had unique cultural legacies in its judicial system that meant that it would not be as appropriate as Western Australia for considering policy measures.

I am just pressing the point out of curiosity. What were the unique cultural legacies in the judicial system of Victoria?

I am unable to answer that directly as I did not conduct that part of the review.

Okay, I will move on.

I assume that you will have to take into account the different cultural backgrounds of the three jurisdictions and Scotland. Will you also examine the different rates of criminality? In particular, will you be considering the definitions of what constitutes a crime in different societies? Some societies have a very large number of crimes on the statute book and others have a much more restricted view of what defines a crime.

I am particularly interested in the attitudes to crime in different countries. I was really interested in the Netherlands because it obviously has a different attitude to two areas of crime: pornography and drugs. Given that those are not seen to be crimes in the Netherlands but they are seen as crimes here, how are they taken into account in your study? Scandinavian countries have a similar outlook on those areas and they also take a different view of things such as euthanasia. How do you deal with the cultural differences and different attitudes that affect prison numbers?

The cultural differences have come out very clearly in the interim report. What you said about the different definitions of crime and criminality in different jurisdictions is very important. In some ways, it is especially true of the Netherlands. Because of the timescale, we took a very broad view of the various jurisdictions. In some cases, there were small indications that interesting things were happening, but it was difficult to follow that up to see the fuller picture. Part of the problem was the language issue and getting material in English.

There was a tendency to view the Netherlands as having a very liberal and less punitive criminal justice system. However, when we looked beneath that perceived culture, it did not appear to be that way. The reason why the Netherlands had low prison figures in the 1970s and 1980s was that the country made a decision that there should be one prisoner to one cell. Those who received custodial sentences went on fairly long waiting lists. Therefore, the prison figures showed that the Netherlands had a low number of people in prison, but there was no indication of how long the waiting lists were. There were also quite a lot of short sentences. The idea that the Netherlands is less punitive was challenged quite strongly when we looked into the background.

In Europe as a whole, we decided to dismiss some of the countries that we considered, such as Spain, not purely because of cultural reasons, but because they were so completely different. For example, in Spain and Italy, the courts have a flexible role and a lot of responsibility is placed on judges to make decisions about alternatives to custody. Such alternatives tend to be seen as a privilege to the prisoner instead of a direct alternative. Therefore, although Spain and Italy are attractive examples, because in both countries the prison rates are going down, ironically they are also countries in which the use of alternatives to custody depends on the historical role of judges and there tend not to be many alternatives to custody. We felt that the contrast to Scotland was so sharp that we did not pursue those examples in more detail.

I do not know whether this question is answerable, but is it possible to overcome those cultural differences? Is it possible to make a straightforward comparison between the situation in Scotland and that in the three examples that you include in your report? When it comes to the treatment of criminality, it seems that every country is unique. Can any valid comparisons be made?

It is important to emphasise the difficulties in making comparisons, especially when one thinks of western and eastern Europe. There are so many cultural differences and disparities that it is difficult to know where to start.

Once we looked further into the subject, however, we could see the key trends that were common to the way in which the various jurisdictions were heading. Comparisons can be made in certain areas, but there are others in which it is more difficult. The situation in Finland was unique. The decision to reduce the use of custody was taken because there was the political will to do so. The Government also had the massive support of the country. There is political will in Scotland to make the changes, and the mechanisms are also similar. The question is whether public opinion on what the Executive is doing might differ from public opinion in Finland.

In response to my colleague Stewart Maxwell's question, you spoke about the difficulty in making valid comparisons when cultural differences are taken into account. You have also highlighted two other areas that showed the limited nature of trend comparisons in different jurisdictions. The first was how populations are classified and counted and the other was how similar rates of imprisonment can conceal radically different or divergent practices. How will you attempt to circumvent those limitations in the second phase of your research project?

There is probably less of a problem in the jurisdictions that we have chosen to look into in more detail. We have tended to base most of our work on eastern and western European countries in which, in some cases, the difficulties seemed to be insurmountable.

So, relatively speaking, it will be easier in the jurisdictions that you have chosen to make valid comparisons in relation to practices in Scotland.

Yes, although there will be differences. As we indicate in the interim report, it was important to highlight the difficulties and differences at the same time as making the comparisons. Especially at this stage, when we are looking at trends, it would be easy to draw incorrect conclusions from them if one were not aware of the differences. That was particularly true in the case of waiting lists in the Netherlands and Poland. The political changes in the 1980s produced difficulties in many eastern European countries because the notions and definitions of crime and criminality changed quite profoundly, and it meant that it is not possible to compare charges or offences, as they were not similar.

Is there enough similarity among the three jurisdictions that you chose to look at in the second phase of the review to overcome those difficulties?

Yes.

There is similarity, but there is also transparency in the classifications. Where there are differences, we have confidence in being able to identify them. In some other jurisdictions, it was difficult to ascertain what the classifications were. We are confident that we will be able to be as robust as possible.

You said that the second phase of the review will involve more detailed analysis of relevant published material and the collection of additional information. I am keen that we supplement that information with any connections that we can make with those jurisdictions. I do not know much about them, but I presume that there are relevant committee systems or people with whom we could begin to make contact.

I feel that what we have at the moment is valuable in so far as it tells us what the published material is, and we can analyse that. However, if someone were to examine Scotland's prison system, they could look at lots of publications but they would not get added value unless they spoke to us and to the ministers who run the prison system about what the real issues are. Can we discuss with you at phase 2 of the review how we might try to make those connections happen?

Absolutely. We would welcome the support of the committee. We use the term "materials" in its broadest sense to include people and their knowledge as resources. We intend to take a Delphi approach to contacting experts who might have their own unpublished materials and experiences of the process as well of particular policy measures.

Can anyone advise me whether there is a protocol for making contact with other jurisdictions?

I do not know of any existing protocol, but I think that there is scope for visits—perhaps not to all the jurisdictions, but to one or two. Relevant contact could be made with those people. I can certainly find out whether there is a protocol.

If we are discussing going to any of the jurisdictions, we should be able to make contact with the relevant democratic structures to say what we are doing and to welcome dialogue with them. In future, we might even be able to get some correspondence going. Could you investigate that?

Yes, of course.

As there are no other questions, I ask members to agree the recommendation that we look at the three jurisdictions under discussion. Are members happy to proceed in that fashion, with the proviso that we want to add weight to the academic research by making some contact with those jurisdictions?

Members indicated agreement.

On behalf of the committee I thank Susan Eley and Bill Munro for what they have done so far and for appearing before us this morning. Would either of them like to say anything in conclusion?

Thank you for your support on agreeing to look at those three jurisdictions.

I also thank Graham Ross.