Public Audit Committee

Meeting date: Thursday, October 28, 2021

Official Report 614KB pdf

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“Community justice: Sustainable alternatives to custody”

The second item on our agenda, and the main purpose of the first half of our meeting, is to discuss the Audit Scotland briefing, “Community justice: Sustainable alternatives to custody”. We have with us three witnesses from the Scottish Government. I am delighted to welcome to the committee Joe Griffin, who is the director general of education and justice; Neil Rennick, who is the director of justice; and Catriona Dalrymple, who is the deputy director of community justice and parole.

We have a number of questions to ask, but perhaps Mr Griffin would like to begin by making an opening statement.

Thank you very much, convener.

I thank the Public Audit Committee for inviting me to give evidence, alongside Neil Rennick and Cat Dalrymple. Following the Auditor General’s evidence to the committee on 30 September, I welcome the opportunity to discuss Audit Scotland’s recent paper, “Community justice: Sustainable alternatives to custody”.

At a time when the Scottish Government is increasing its focus on community justice, Audit Scotland’s briefing and its planned work for 2022 will be enormously helpful in informing our approach to that vital area. The various points that are raised in the briefing are relevant to not only community sentencing—the main focus of the paper—but wider community interventions such as diversion from prosecution and alternatives to remand.

Overall, we agree with Audit Scotland that there are some challenging issues to address in community justice, as well as opportunities to improve outcomes. However, I stress at the outset that it is important to see community justice in the wider context of the changing nature of crime over the past decade, when there has been a downward trend in overall levels of crime but an increase in the number of prosecutions for certain crime types, especially sexual offending. It is a complex picture.

I thank all those who are involved in delivering community justice services—justice social workers, community justice partners, third sector organisations and a range of others—for their work during the pandemic in maintaining critical services in incredibly challenging circumstances, supporting individuals on orders and keeping our communities safe. The on-going impact of Covid on the sector and the wider justice system will be a key consideration in our next steps.

Again, I thank the committee for its invitation. I look forward to your questions.

Thank you, Mr Griffin. As I said, we have a range of questions that we want to ask and ground that we want to cover.

I will begin by reflecting on the briefing, which put in fairly sharp relief the picture as Audit Scotland saw it. When we received evidence from the Auditor General, he said that there was

“a fairly static level of progress”,—[Official Report, Public Audit Committee, 30 September 2021; c 37.]

which was an interesting—and perhaps a polite—way of describing what could best be described as a zig-zag in the outcomes of custodial versus non-custodial sentences.

It is important to emphasise that the findings of Audit Scotland were that, if people with sentences of one year or less were put in custody, there was a 49 per cent chance of reconviction within the next year, whereas if they went into the community justice system, there was a 30 per cent probability of reconviction.

We also know that there is an enormous cost to the public of people serving time in prison. Audit Scotland came to the figure of a cost of more than £37,000 a year for somebody to be kept in jail, compared with a cost of around £1,894 a year for an equivalent community sentence. That is a massive discrepancy and, as the Public Audit Committee, we are interested in such figures.

Do you accept those findings and all the other findings in the report?

We accept the recommendations that were made to the Government, and everything that Audit Scotland said is factually correct. However, it is important to look at the overall context when comparing custodial and community sentences. In that context, we can say that more progress has perhaps been made than is implied by the way in which the debate is sometimes framed.

I will state three key facts. First, the overall number of disposals has fallen by 40,000 in the past 10 years. Secondly, the number of individuals sentenced to prison in the past decade has fallen by 4,000, which is some 18 per cent. Thirdly, the number of short-term sentences of 12 months or less has fallen by 4,500 in 10 years, which is around a third. There is less activity in the justice system, and there are fewer sentences and fewer individuals going to prison.

However, the people who go to prison are going for longer, and it is the growth of longer-term sentences that is keeping the prison population high and keeping the share of custody—as opposed to community justice—sentences at the level that Audit Scotland has correctly identified. There are various reasons for that, which we can explore if the committee is interested. They relate to there being more confidence in reporting, changes in legislation and the success of the approaches that are being taken in youth offending, for example. The basic fact is that there are fewer people going to prison, but they are going there for longer.

In that context, community justice is making steady progress and, overall, the number of community sentences has increased; it increased by 7 per cent over the course of the past year. The community justice percentage share of all disposals is 22 per cent, which is an 8 percentage point increase in 10 years.

We have ambitions to do even better than that, for all the reasons that the convener has just outlined and that the Auditor General outlined in his briefing. The discrepancies in outcome and cost make us ambitious. People are still receiving short-term sentences—in 2019-2020, 1,400 people received a custodial sentence when the main charge was shoplifting—so there is more that we need to do. We need to ensure that there is capacity and reliability so that the judiciary feel confident to avail themselves of community sentences in appropriate circumstances. However, the progress in the growth of community justice has been steady and reasonable.

Thank you, Mr Griffin. Feel free to bring in the other witnesses alongside you, if you think that they could helpfully illuminate some of those points further.

You spoke of totals. I am not in a position to dispute the figures that you presented to us, which we will look at in a bit more detail, but there is an emphasis in the Audit Scotland briefing on the proportions. It is a stated aim of public policy to change the balance between custodial and non-custodial sentences. However, over the past three years, the proportion of non-custodial sentences went from 59 per cent to 56 per cent, then back up to 59 per cent. That does not show a clear line of progress to the public or members of this committee; rather, it looks as though there has been one step forward, one step back, then one step forward again. Will you reflect on the proportions as well as the totals?

I am very happy to do so. The proportions that Audit Scotland demonstrates in its briefing are of custody and community sentences only, yet there is a much wider range of disposals, including fines and admonishments. The issue with comparing only custodial and community sentences is that custodial includes the short-term sentences that, increasingly, we want to displace with community sentences. It also includes longer-term sentences, the number of which have been growing steadily over the course of the past decade. That stubborn percentage in the high-50s for the proportion of custodial sentences and our still high—compared with the rest of Europe—prison population are now being driven by longer-term sentences for fewer people.

In other words, the situation has changed. I submit that community justice has achieved a lot of its objectives over the course of that period, but the context has shifted pretty significantly—the rise in the prison population is now more driven by fewer people going in for longer sentences.

So, you dispute the conclusion that there is

“a fairly static level of progress”—[Official Report, Public Audit Committee, 30 September 2021; c 37.]

or no progress at all. In your eyes, we are making progress in shifting the balance from custodial to non-custodial sentencing. Is that right?

I think that Audit Scotland was absolutely accurate when it said that the prison population is still high and that the proportion of prison sentences in the overall mix remains stubbornly high. However, that is being driven by fewer people going to prison for longer, not by a stubbornly high rate of short-term prison sentences. Such sentences still exist—I gave the example of shoplifting—but community justice and community sentencing have grown, and we have seen a shift to a longer-term picture. The slight disadvantage of only making a direct comparison between custody and community is that custody includes the short-term and the longer-term sentences.

I want to move on. I will bring in other committee members shortly, but one thing that stood out in the briefing, which other members will address, is the quite significant geographical variations in community sentencing—for example, by local authority areas. What is your understanding of the reasons for such wide and marked variations, depending on where someone is in Scotland?

The Audit Scotland briefing focuses on community payback orders, and there is a table in it that shows those wide discrepancies. Again, it does not provide the whole picture, because other community disposals and other alternatives to prosecution are also in the mix. The areas that appear in the table as having relatively low rates of community payback orders have, for example, relatively high rates of fines. Therefore, it is not a complete overall picture that is provided.

However, the issue of regional discrepancy has troubled us for a while. It is a feature of the system. To some extent, it is inevitable, because there are different demographics and different population mixes, and every individual decision is made by the judiciary based on the circumstances in front of them at the time.

A lot of it comes back to the importance of partnership working, because community justice is the product of different organisations working together. There are eight statutory partners, and more that sit around the table. A lot of variability is built in, in terms of local resource, local priorities, local performance and the quality of the partnership working—that is, the degree to which people buy into the process. That is partly at the heart of the issue: because community justice is holistic and cross-cutting, whatever system you have for it requires partnership working, and it can sometimes be harder to hold partnerships to account than individual organisations. The issue lies in that mix.

We have some plans, which I can talk about, for how we want to improve that regional variability in due course. The situation needs to get better, but if we are to get the whole picture, we need to see the other forms of disposal in the mix as well.

Thank you. Mr Beattie will ask questions about the governance structure later on.

I turn to sentencing, on which I invite Willie Coffey to ask his questions. An interesting report has been published today by the Scottish Sentencing Council that goes to the heart of some of the committee’s questions and areas of concern.

Good morning. I want to start the discussion about the judiciary’s response to the whole situation by asking whether you think that they are keeping pace with the changes that are occurring. From the data that we have, it seems that someone who has previously had a custodial sentence is twice as likely to be reconvicted as someone who has had a community disposal. That is not reflected in the numbers and percentages of community disposals that we are seeing. Therefore, the question that we are interested in is whether the judiciary are keeping pace with the changes.

In this morning’s press release from the Scottish Sentencing Council, Lady Dorrian cites a number of key themes, including greater consistency and resource constraints. She also talks about legislative barriers and, importantly, the public’s perception, which is that there is a problem with confidence in community disposals. What do you think that the potential barriers might be to the judiciary catching up with the process?

09:15  

We welcome the Sentencing Council’s report. It is incredibly useful to have an insight from the judiciary on how they view community justice and on what some of the obstacles may be.

The council reported on the purpose of sentencing in 2018, when it set out five essential purposes: protection, punishment, rehabilitation, the opportunity to make amends and an expression of disapproval of the act. It is through that lens that the judiciary look at community justice.

The Sentencing Council’s latest report demonstrates that the judiciary understand the benefits of community justice. I get the sense that there is a shared ambition to see more of it, for the reasons that you set out. The council also makes a helpful contribution by pointing out some of the things that might plant a seed of doubt in a sheriff’s mind when they are examining a situation and deciding whether a community disposal is the best course of action. Much of that analysis is quite well aligned with the Audit Scotland briefing and with what Community Justice Scotland says in its annual report to Government.

It feels as though we are on the case with some of the issues. A review of the community justice strategy is under way. Work needs to be done on the outcomes framework and the data, which is not where it needs to be. I am sure that we will come back to that. A number of the other issues that the council points out reflect the holistic nature of the system. Dealing with offending behaviour means looking at homelessness, drugs, alcohol, employability and so on. It is important to have a quality partnership to bring forward disposals that face different ways and give confidence to the judiciary.

Overall, we see the Sentencing Council’s report as being a helpful contribution. The growth in the use of community sentences and the fact that the Sentencing Council has taken the time to inform the debate in that way suggest that the judiciary have a shared interest in the continued growth of community justice.

From our perspective, or from the public’s perspective, although there is evidence that people who are given short sentences are twice as likely to be reconvicted, that does not seem to be reflected in the number of community disposals that are being given. Is there an imbalance that should be explored further with the judiciary?

Yes. For the reasons that the convener pointed out, we are ambitious. There is a better track record on outcomes, relative costs and efficiency. That is one reason why the Government recently extended the presumption against short sentences, which was set at three months a few years ago but is now at 12 months. We have not yet been able to measure the impact of that, because of the Covid pandemic, but we have seen a real decline in the number of short-term sentences. They are still used, which may reflect a lack of confidence among some of the judiciary that a community sentence is the best disposal for the person in front of them.

The question is about the judiciary keeping pace: I do not have a sense that they are in denial. The briefing gives a sense that the judiciary recognise the advantages and want a system that they can rely on so that they can confidently pass community sentences where that is appropriate. It is our job, together with our partners in the sector, to ensure that, everywhere in Scotland, the judiciary can have confidence in the capacity for and quality of community disposals.

Lady Dorrian has referred to legislative barriers to the imposition of community-based sentences. The legislation is there. Where are the barriers?

I might ask Neil Rennick to answer that. My interpretation is that that is about the legislation dealing with auxiliary areas such as alcohol and drugs. A sheriff will want to take into account the different statutory frameworks that pertain to those areas, which can get quite complex when set alongside the community justice framework. Neil, is that your understanding?

That is a good reflection. As the director general says, the briefing is hugely helpful, because it makes specific suggestions about reforms that we can look at, particularly in areas such as dealing with people who have mental health issues or a background of drug use. It could provide some flexibility in how community payback orders operate to provide a mix of interventions that is better suited to each individual’s needs. That is helpful and is something that we will definitely look at.

Are those barriers preventing us from imposing community-based sentences and forcing us to have custodial sentences?

I have had the chance to look at the SSC report only briefly—we will look at it in a lot more detail—but my reading of it is that the issue is the mix of the choices that are available under the legislation in designing a package for each individual, along with access to services, particularly mental health and drugs services. We need to look at the options that are available and ensure that they are available in each community. We will definitely pick up on that.

Craig Hoy has questions to probe into that area a bit more.

The Scottish Sentencing Council’s report says that the council is of the view that

“there is a lack of public awareness of, and confidence in, community disposals.”

I want to dig a little deeper into that, as it suggests that more work needs to be done to raise and enhance public understanding of community justice.

The report also refers to an Ipsos MORI survey that was done a few years ago which looked at various scenarios and tested public opinion and confidence in relation to custodial sentences versus community sentences. One issue is whether greater awareness will ultimately lead to greater confidence in community justice. A scenario that was put to those who were polled concerned an individual who was found to have indecent images of a child on their laptop. People were asked whether that individual should get a custodial sentence, and 77 per cent were of the view that that should carry a custodial sentence. However, that would most likely attract a community payback order, because there were no images of abuse of the child.

Who should be in the driving seat: the Government, the public or the judiciary? I do not have confidence that greater awareness will lead to greater confidence in the system. What is the Government’s current thinking on that?

Neil Rennick or Cat Dalrymple should feel free to supplement my comments.

Far be it from me to question the judiciary’s interpretation. I think that there is still work to be done in increasing the visibility of community justice. To be honest, that is not a great term, but I am not sure that we have yet found a better way of describing the group of issues concerned, which relate to sentences, community payback orders and other matters, the preventative work that we need to reduce crime in the first place, and the rehabilitation of offenders and people coming out of prison. Those issues are the responsibility of the community justice system, and we have yet to find a way of describing that group of issues that is as readily understood as prison is. Prison is a well-established concept in the public mind. There is, of course, something in what the judiciary says in its report.

The Scottish Government has some responsibility. The public debate involving the Administration in different guises has looked at the balance of prison and custody for a considerable period of time. That goes back to the Scottish Prisons Commission and Henry McLeish’s report in 2008. There has been a consistent political and public dialogue about that.

At the national level, Community Justice Scotland is able to increase the visibility of community justice in the work that it does. At the local level, there has to be on-going work with communities on understanding the nature of the system that we are talking about.

The point about whether awareness necessarily equates with greater confidence is interesting. As always in the justice system, looking at individual cases will raise pros and cons and different perspectives. I go back to the five principles of sentencing that the Scottish Sentencing Council has set out. The public could have greater awareness of those. There are five aspects that a sheriff will weigh up at any given time in the specific circumstances concerned, such as whether protection needs be given a real focus, or a rehabilitative element.

The Government can add things into the mix. One of the things that the Management of Offenders (Scotland) Act 2019 enables us to do, with Parliament’s support, of course, is to use increased electronic monitoring. With the advances in technology in that area, electronic monitoring gives us the potential to increase the protective aspects even of community disposals. In the context of bail—this week, around 28 per cent of the prison population are on remand, which is a significant figure—the greater use of electronic monitoring gives a greater degree of security and protection while allowing us to pursue the rehabilitation aspects and the opportunity to make amends that community disposals give us.

I do not know whether Neil Rennick or Cat Dalrymple have anything to add.

One other area to mention is the role of the Scottish Sentencing Council, which has a specific statutory role in raising awareness of sentencing. It has done some interesting work, including the publication, in 2019, of a report on public awareness of sentencing. That showed that there were very high levels of awareness of community payback orders and electronic monitoring as sentencing options, with 98 per cent of people saying that they were aware of those sentences and a majority of people—63 per cent—saying that they had confidence in the fairness of the justice system.

However, it is clear that we need to do more when it comes to improving the wider understanding of the breadth of options that are available around community payback orders and community sentences, and building confidence in that as a rehabilitative model. I mentioned the work that Community Justice Scotland has done in that area in promoting better understanding of individual cases of people who have been through the community justice system and turned their lives around. That has been a really positive contribution.

Is there a risk that, if you do not persuade the public through a process of raising awareness, you could damage confidence in the concept more generally? In the example that I gave, which involved an offence that 77 per cent of people believed should carry a custodial sentence, that offence would, in practice, attract a community payback order. In such cases, do we just have to say “Tough” to the public, because the system does not reflect their concept of justice?

No, I do not think that we would ever take that approach.

Every case will be different, and every set of circumstances needs to be understood in its own terms. In the context of the justice system, we think about the aggregate of that. When the public has concerns, there are ways in which the Government can help to respond. I gave the example of greater use of electronic monitoring, alongside other disposals that seek to reassure the public.

When it comes to the justice system, an understanding of the public mood is incredibly important. That is more a matter for our ministers than it is for us, as civil servants, although we support and advise them by gathering information about that. The people who are involved in orders and their families and victims absolutely need to have confidence in the system. We certainly would not question that.

I want to bring us back to the nitty-gritty of the Audit Scotland briefing, on which Sharon Dowey has a series of questions.

There is a lack of data on the wider outcomes—including on employment and health—for people who have been through the justice system. There is also a lack of data to enable Community Justice Scotland to assess how much progress community justice partnerships are making towards national outcomes. Why has Community Justice Scotland been unable to effectively assess how much progress has been made against national community justice outcomes?

I will be really clear about that and say that that is an area where we need to improve. The governing framework for data is called the outcomes, performance and improvement framework, which dates back to November 2016. It was put in place just before the establishment of Community Justice Scotland. The framework includes a statement that community justice should be looking to achieve seven outcomes that are defined at a national level. Four of those relate to the health and the functioning of the system, and three relate to individuals who go through the system. Behind that, there are 26 national indicators that seek to track what is happening.

We have learned that a couple of things are not working well with that, one of which is to do with the fact that around half the indicators are qualitative; they are statements about an improvement or a state of affairs. Because they lend themselves to a subjective narrative, the returns that Community Justice Scotland gets from partnerships are invariably of such a nature. The Community Justice Scotland annual report provides a summary of what people have described by way of improvements in processes or relationships.

09:30  

That makes it quite difficult to aggregate, as could be done with numbers or quantitative data. Such data would let us say that we are improving by a certain percentage across the 30 partnerships, but we are dealing more with language and judgment. Of the quantitative indicators—they make up about half of the indicators—some are readily measurable at national level but not at local level.

At the time, the aspiration was to put in place a data system that could do justice to the breadth of what community justice could achieve. That created a couple of challenges. One is the inability to measure some indicators at local level. We thought at the time that the methodology would evolve and that we would find ways to do that. We have not done that yet, so we must reflect on that.

The second challenge is about the breadth and complexity of what we are talking about. Someone who has committed an offence is also a person. They will have health and employability needs, as we have discussed. The ability to measure all those needs and to track them consistently at the individual level is bedevilled by all sorts of different data sets and data protection agreements, some of which are reserved and some devolved. It is a complex picture. That is not a cop-out. We should try to do justice to the complexities that those individuals face but, in all honesty, we have not achieved that in recent years.

The legislation always said that Community Justice Scotland should review the framework after five years. It is doing that now, and the work is well under way. The suggested improvements to the framework will be published early next year, together with our review of the overall strategy for community justice.

We accept that the system is not working as well as we would like it to. It does not give me, as the accountable officer, the data that I would like to see. We have a clear plan for improvement and we must learn the lessons, including those that Audit Scotland has helped us to understand.

What work have the Scottish Government and other stakeholders done to examine whether the wider outcomes such as health or future employment have been achieved?

Neil Rennick or Cat Dalrymple may want to come in here.

I must again reflect on some of the challenges. The way that the data works means that we are not looking at an individual person who can be pursued through different bits of the system. At an individual level, we hope that the criminal justice social worker who is working with that person will have a good understanding of how they are getting on, but that is not reflected by a multi-agency data set that would let us flick to tabs for bodies such as the Department for Work and Pensions or the local alcohol and drug partnership. The system does not have the complexity and sophistication to allow us to follow individuals in a data-led or quantitative way. The criminal justice social worker, who works in a relational way, ought to be able to see how a person is getting on.

Neil or Cat might wish to add to that.

Mr Griffin has explained the challenges of measurement in the sector. To understand our impact, it is important to understand the interventions that we implement. Those interventions are evidence based, so we begin with the reasonable belief that we should contribute to the outcomes that we are seeking, even if we cannot exactly measure that contribution.

Our strategy is based on principles supported by academic and evaluative literature. We know that seeking to divert people from the justice system early on, diverting people from custody whenever that is appropriate and addressing offenders’ underlying needs and addictions will all improve outcomes and help to achieve the ultimate aim.

The Auditor General’s briefing states that Audit Scotland’s 2012 report “Reducing Reoffending in Scotland” said that a lack of data made it difficult to assess the impact of community justice authorities. The issue was also mentioned in the outcomes, performance and improvement framework report of 2016, and our predecessor committee mentioned the issue in its 2019 report on key audit themes. The committee raised significant concerns about a recurring key audit theme of incomplete and poor-quality data.

I take on board your point about the multi-agency and complex nature of the issue and the fact that a review is under way, but how and when will the data issues identified in the Auditor General’s briefing be addressed? We do not want to have another report from the Auditor General that again states that there is incomplete data. The first report that I mentioned goes back to 2012, which was nine years ago.

I completely understand the point. The Government and the civil service have digested the legacy report from the predecessor committee—we have read and discussed it. The Auditor General has been to the executive team, and we have discussed some of the key themes that he and his organisation have been observing. We understand the point, and we need to get better at this. In this sector, our early expression of that will be next year, in the revised framework that we are discussing. I am sure that we will be back to discuss that in due course, but we need to get that right, and we are determined to do so.

I would not want to imply that some things will be easily remedied and that we will be here in a year’s time saying that we are happily able to track individual offenders in respect of every different agency and area of public life. It would be very hard to do that for any individual citizen, and it is particularly hard to do it for people who are living quite complex lifestyles, sometimes bordering on the chaotic. There may be insufficient accommodation, and so on.

I underline my absolute commitment and the commitment of the civil service and my colleagues on the executive team to improve things as part of how Government approaches public policy. We will do better on community justice, through the production of the new framework next year. However, I need to be honest and say that there will still be intrinsic difficulties, which will take time for us to work through.

I will clarify one point that has helpfully been raised. The concerns that were raised by Audit Scotland in its 2012 report on reducing reoffending absolutely fed into the work on the development of the outcomes, performance and improvement framework, or OPIF. There was a two-year process of workshops, and a cross-agency working group developed the OPIF. As the director general says, that was an ambitious document that tried to reflect qualitative and quantitative indicators.

Through testing the framework and through Community Justice Scotland applying it in the new system, gaps and issues have been identified, which we absolutely accept. We are grateful for the work that Community Justice Scotland did last year in reviewing the framework and for the work that it is doing now to inform us and to help us to develop the new framework that will sit alongside the new national strategy. It is not that the concerns that were raised in 2012 were not responded to; they were responded to, with some significant work. However, as the director general says, this is an incredibly difficult area in which to find the right mix of indicators, and we continue to work on that.

I will add one thing about the evolution of the system. Community payback orders have now been in place for 10 years, which is a reasonable period of time, but not a long period compared with the period for which we have had prison. In my time in this area, I have observed a shift, with a mindset and a focus on the management of offenders, which considers risk, timescales and the numbers of community payback orders. Increasingly, we are thinking about broader sets of outcomes in terms of housing and drugs and alcohol that will support the person’s rehabilitation journey. That transition has been taking place over the past few years.

The system is maturing, and the data system needs to mature along with it. As Neil Rennick says, we will find some complex things along the way. The different philosophy of community justice, in which we are looking to be effective in reducing offending and cutting crime by addressing some of the underlying causes, is reflected in the need for an improved and more complex data set.

I just want to ensure that, wherever we focus the money, we are getting the outcomes that we want.

Absolutely—100 per cent.

You understand, Mr Griffin, that the committee has a healthy appetite for data.

You will understand, convener, that, as accountable officer, I, too, have a healthy appetite for data.

It is about outcomes, performance and improvement.

Of course.

That needs to be measured, and it needs to be measured in a meaningful way.

Earlier, we mentioned the governance and accountability lines, particularly since the passing of the Community Justice (Scotland) Act 2016. Colin Beattie has a series of questions about that.

Yes, I will ask about roles and accountability. In particular, I draw the witnesses’ attention to paragraph 9 of the Auditor General’s briefing and the first bullet point under paragraph 13. That bullet point is the first priority that the Auditor General lists, which is that the Scottish Government needs to consider

“Whether all stakeholders involved in the planning and delivery of community justice have a shared understanding of lines of accountability and areas of responsibility.”

Do they?

I cannot give an authoritative answer in respect of 30 partnerships with eight statutory partners in each. My impression is that there is a good level of understanding. The 2016 act is clear. There is a complexity that comes from trying to combine a local approach that needs to be cross cutting and joined up, which is the partnership bit, with a national function—the Community Justice Scotland bit, which relates to gathering data and securing improvement and in which the Scottish Government also has a role.

The duties in the 2016 act are such that we can see different levels of effectiveness and engagement. The act is very clear that the partners need to plan together. What that looks like has the scope to be variable in different areas. One of Community Justice Scotland’s themes is that there is not enough strategic needs planning at the local level to provide a real sense of the capacity and different needs in the community sector.

It is hard to give an authoritative answer and guarantee that everybody has a shared understanding of accountability and responsibility. The 2016 act is clear enough. It has been in place for a number of years and the Care Inspectorate now undertakes scrutiny in community justice, which is incredibly helpful. It is providing good feedback that helps people to improve.

Do you believe that the individual stakeholders involved have a common understanding of their responsibilities and roles?

Yes, I do. To put it another way, I have no reason not to. It is a reasonable question to ask. Because of the scale of what we are talking about—eight statutory partners in 30 partnerships—it is hard for me to answer, but I am not hearing a steady stream of information to say that there is a problem with this or that agency.

I detect a certain amount of uncertainty in your responses over whether everybody understands their roles and responsibilities. Perhaps one of the issues is that the community justice partners still remain accountable through their usual accountability arrangements. Does that create an issue?

The issue is that you need to have a partnership approach at local level. We came out of the community justice authority model, which was widely thought not to be working effectively, into the local partnership model partly to reflect the local aspect and partly to reflect the partnership aspect. As I said, you cannot tackle offending effectively unless you look at all the different areas. The partnership will always have to be a feature of that.

Holding partnerships to account is more complicated than holding individual organisations to account. An incredibly important part of community justice is criminal justice social work. That function sits within local authorities. It is clear how it is held to account through local authority processes. How you hold the partnership to account collectively is more of a grey area and more nuanced. Individual organisations need to report through their accountability chains.

Given that we want everybody to understand fully where they are and what they do and to work together cohesively, would Community Justice Scotland benefit from additional powers to support its role—for example, powers that would enable it to drive a more strategic approach to planning—and create a better, more disciplined line of accountability?

Community Justice Scotland has more interventionist powers than it has used. It has the power to make directions.

In that case, given the uncertainties, why have you not done that?

It would be for Community Justice Scotland to do that, not the Government. Community Justice Scotland has not availed itself overtly of that power. However, behind the scenes, it has had discussions and intervened to promote collaborative working. In addition, since 2019, the Care Inspectorate has restarted its scrutiny in that sphere, which has also provided challenge to and led to improvement in a number of different areas that were previously struggling.

09:45  

There is always a balance to be had between direct quasi-punitive intervention and trying to achieve something through collaboration and improvement. Up until this point, the approach has been more one of collaboration and improvement, but other powers are available.

I am sure that we will reflect on the issue. As I mentioned earlier, we are reviewing the strategy, as the legislation requires us to do. It might be that partners feel that, as a result of that, we need to turn up the dial in relation to some of the more direct interventions. I am certainly open to hearing evidence that that would be an effective thing to do.

Given that you believe that Community Justice Scotland has the powers to act, why is it not using them? This is not the first time that this issue has come up. During the consultation on the proposals for the legislation that became the 2016 act, many stakeholders said that they were unclear about roles and responsibilities. It still sounds as though there is a weakness in that regard. If Community Justice Scotland has the powers, why does it not use them? If it does not use them, why does the Government not push it to use them?

As I said, my understanding is that Community Justice Scotland has chosen to act behind the scenes. Its approach is more about promoting collaboration and improvement than it is about availing itself of its interventionist powers, the use of which would be seen as significant. Neil Rennick or Cat Dalrymple might be able to shed more light on what Community Justice Scotland’s thinking is behind that.

It is exactly as the director general has said. The new model has been operating, prior to Covid, for three years. Where concerns were identified, Community Justice Scotland has taken the approach of going into local areas and working with them to try to drive improvement. The Care Inspectorate undertook an inspection in West Dunbartonshire and it identified a number of concerns. Community Justice Scotland has been working with that area to address those concerns and deliver improvement.

Colin Beattie is right that the direction power exists for Community Justice Scotland. It is for it to decide whether to apply that. Community Justice Scotland has reassured us that it is intervening and working with the local partnerships to drive improvement. However, it has also identified wider issues, including the issues around data that the director general has mentioned, and it is looking to drive improvement across the whole system in that regard.

I do not know whether Cat Dalrymple has anything to add.

I note that Community Justice Scotland can and will highlight certain issues in its annual community justice outcome activity report. In its last report, it highlighted concerns about three areas that had not renewed their outcome improvement plans as required.

Community Justice Scotland has highlighted some areas, as has the Auditor General. There seems to be a problem that must be addressed. Community Justice Scotland has the powers. I am not asking for it to be draconian, but if going behind the scenes, having a wee chat to people and trying to usher them down a particular path is not working—and it demonstrably seems not to be working—action needs be taken.

I am open to that line of argument. As I said, we have a consultation under way about the strategy and how it is working. I am open to seeing evidence that a more interventionist approach would deliver results.

I would not quite characterise the system as “not working”. I think that there are—

I did not use the term “not working”.

Forgive me, Mr Beattie—I did not mean in turn to mischaracterise you. Up to this point, I have not seen any evidence of egregious problems that I think would justifiably have caused Community Justice Scotland to go in with a directive and interventionist approach.

Yet stakeholders and Audit Scotland have expressed concerns.

They have, and Community Justice Scotland takes the view that the best way to address those is through the collaborative approach.

You mean Community Justice Scotland carrying on with what it has been doing before, which has not really given the hoped-for results.

I think that there are positive results. Neil Rennick mentioned West Dunbartonshire. That is a good example of how a partnership that was finding some things difficult was able to respond to the Care Inspectorate’s scrutiny and make improvements to the inspectorate’s satisfaction.

There is a combination of things. There is the data that we have, there is the Community Justice Scotland approach, as it judges to be necessary, and there is also the scrutiny from the Care Inspectorate, which has restarted since 2019 and which has been important.

We have to get the data sharpened up so that we have a clear idea of performance, including relative performance, across the piece. There is then a judgment to be made by Community Justice Scotland about what will best get the improvements and results that it needs. I would be poorly placed to say that we must never take a more interventionist approach, so I am open to that line of argument.

Have you accepted the Auditor General’s report?

Yes.

In that case, you also accept that there is an issue around accountability and lines of responsibility. It is therefore a question of what you will do to change what is happening now in order to ensure that those required outcomes are achieved.

There is a complexity in the system in relation to accountability. We do not have plans to review the 2016 act and therefore to make significant changes. However, we think that we have to address the data—that is really important. We also have to look at the overall strategy.

Data is essential, but if people do not necessarily fully understand the responsibilities and areas of accountability and so forth, you have a fundamental problem right from the start. It seems that the softly, softly approach behind the scenes over a number of years has not delivered. There must therefore be a need to revisit that to see what needs to be done to pull it together.

As I said, a review is under way at the moment. The legislation always provided for that. I am happy, during the course of that review, to hear evidence that a different approach would get better results. However, I do not accept that there are egregious problems in the system. As I pointed out in my earlier remarks, we are making steady progress.

Although there is the opportunity to hear how taking a different focus in some different areas could lead to improvements, the Government does not have plans to revisit the accountability framework that is set out in the act. You will always need some degree of partnership at local level and you will always need some kind of oversight and improvement function at national level. That strikes a balance, and we need to keep improving the way in which it functions rather than revisiting the fundamentals.

We are in our final few minutes. If other members want to come back in for another go, they are welcome to do so.

Going back to the overall outcomes and where we began, it struck me that, although we have a national strategy that has been in place since 2016 and an act of Parliament that provides for a new institutional structure to deliver community justice, the conclusion of the Audit Scotland report was that little progress appears to have been made in the intervening period.

I understand the points that Mr Griffin made at the beginning about the total volumes and how that has changed. However, as the Public Audit Committee, one of our maxims is follow the money. The Audit Scotland report states:

“Community justice funding makes up less than five per cent of overall justice funding, and there has been little change in recent years.”

If we are following the money and this is a priority and everybody wants to see a change in the balance between custodial and non-custodial, why is that so static?

That is a fair point. It is partly because it is a relatively cheaper system to run than prisons, as we have been talking about. Some of the unit costs are quite instructive; the unit cost of a community disposal is far smaller than that of a custodial one, for example. A prison system is a more expensive system to run. We have increased funding by 13 per cent since 2016-17, and the Government has made commitments to increase funding still further. It also relates to the transition that I described earlier, in that community payback orders were first introduced 10 years ago and it is a system that is growing and maturing.

The other crucial thing about community justice is its breadth. To some extent, the funding for criminal justice social work that the Government provides through section 27 of the Social Work (Scotland) Act 1968, which is hypothecated, is only part of it. The reason for having a partnership approach, which brings complexity in terms of accountability, is that other partners also bring resources to the table. When I speak to colleagues in localities, they tell me that that is happening. Drug and alcohol partnerships, local authority housing and accommodation services, Skills Development Scotland and so on bring their resources to the table. That is quite hard to quantify, but those resources are part of the mix. We are on a transition and a journey to increase the share of 5 per cent to a larger number, but there is the more complex issue of other funding sources being an important part of the picture.

Two things arise from that. Would it be possible to get that information or data into the public domain? If the point that you are making is that 5 per cent does not capture the full extent of the additional resources that are now going into community justice, it would serve your argument and the case for your department’s performance to demonstrate that more resources are going into that. As I said, quite an important maxim is follow the money.

The other question that arises for me is whether you have any targets. We asked that question in the session with Audit Scotland on the briefing. I mentioned the proportion of non-custodial sentences going from 59 per cent to 56 per cent to 59 per cent. Do you work towards any formal or informal or internally or externally set targets for that number?

We do not. The idea of a target for the prison population has been mooted—it was mooted by Mr McLeish in his Scottish Prisons Commission report. A target of some 5,000 was mooted to ensure that the prison population remained at a level that was comparable to those of other European countries. I think that ministers took the view at the time—this still pertains—that a couple of factors make that difficult, one of which is the independence of the judiciary. It would be problematic for the Executive to constrain the independence of the judiciary to make sentences in that very crude and target-based way.

The second factor is the unpredictability of the system. Earlier, I described the big change that we have seen away from short-term custodial sentences to fewer sentences, of longer length. We could not have foreseen that in 2008. Similarly, we do not know for certain how the justice system will develop in the next decade. We know how we would like it to develop, and we have plans for where we want it to go. However, as far as the prison population is concerned, targets are problematic.

On the issue of community disposals more generally, my mind is not closed to the idea that we could consider that. We have to look at the range of community disposals and not get too fixated on community payback orders, important as they are. We have to understand the full mix and the pre-sentencing options that also exist. We can give some thought to that in the refresh of the strategy. However, a target for the prison population is problematic.

I was not suggesting a target for the prison population; I was referring to the whole basis of the conversation this morning, which is about the proportions and how we get a shift from custodial to community-based justice options. That is not about a cap on the prison population; it is about how we shift from disposals that are custody based to disposals that are not custody based. My question is: are you set any targets for that shift in balance from one to the other?

The answer to the question is no. However, I go back to the point that we have seen a shift from short-term prison sentences to community sentences—there is no question about that; the data is clear—but, in parallel, we have seen an increase in long-term prison sentences. The nature of the challenge has changed. That could call into question the usefulness of targets for that percentage, because we are not comparing the same things that we were 10 years ago. However, the clear answer to your question is no, we do not have plans for a target.

The director general is absolutely right about the importance of the switch round in the reduction in short-term sentences. Obviously, things can feel very unclear when we talk about percentages and numbers. Even in the short space of time since the new arrangements came into place, in 2016-17, we have seen a 1,500 drop in the number of people going into prison for short-term sentences. That is 1,500 people not having disruption to their housing, their employment and their family life. Those are important changes that have happened in the short term and, as the director general said, there are much larger numbers over the longer term—a reduction of 4,000 in the number of people going to prison.

10:00  

Although we have not set targets for specific elements of the justice system, because what happens there reflects decisions by the independent judiciary, we have provided targeted funding for specific areas. A good example is supervised bail. Over a period of time, there was a recognition that the judiciary’s use of supervised bail had been dropping and that availability was an issue. Our provision of around £1.5 million of targeted funding for that over three years has resulted in a significant increase of 60 per cent in the availability of supervised bail.

It is clear that we still have further to go, but that is a good example of how the provision of targeted funding, rather than the setting of a particular target, has had an impact in improving availability. Prior to the pandemic, we were looking at wider areas where we could apply that approach but, because of the impact of the pandemic, we have allowed local partnerships more flexibility in their use of money over the past 18 months. However, we think that that approach has worked well for supervised bail and that it might have benefits for other areas, too.

Thank you, Mr Rennick. That was a very helpful and instructive answer, although it provokes a final question.

Everyone talks about the logjam in the criminal justice system because of Covid, during which the courts have operated on a very different basis. Mr Griffin, can you tell us about the department’s view of how the backlog will be managed? “Opportunities” might not be the right word, but does the current situation give you a junction in time to drive what happens in a slightly different way?

I do not know whether the recovery, specifically, does that, but the recovery work is taking place at a time when we are considering other matters in other ways. There is the review of the strategy that we have talked about, as well as the national care service consultation, which could have implications for criminal justice social work.

The recovery from Covid is an important part of all that work. As you will know, so far, we have provided additional funding of £11.8 million. In the light of Mr Sunak’s announcements yesterday, we will look at the budget to see to what extent we can sustain that in coming years.

Neil, do you have anything to add in response to Mr Leonard’s question about the opportunity that the recovery presents to help us to make the shift that we have discussed?

Absolutely. That opportunity has been recognised as we have gone through the pandemic. Very deliberately, the recovery programme that we are following is described as a recover, renew and transform programme. Built into it is the idea that there is an opportunity to do more than just return the system to the way that it was in April 2020, and that has been picked up.

As the director general said, we need to look at a balanced system. As we recover and court activity gets back to pre-Covid levels, that will have an impact downstream for prisons and community sentences. Therefore, it is very deliberately the case that £11.8 million of the £50 million recovery package is going directly to community justice to strengthen that recovery and to make sure that the capacity is there as those cases feed through.

Thank you for ending on that very positive note.

I thank Mr Griffin, Mr Rennick and Ms Dalrymple for joining us. We appreciate your input, your candour and your vitality, at times, in responding to the questioning. Thank you very much for your time and your evidence.

I look forward to seeing Mr Griffin again soon, perhaps.

Thank you, convener.

I suspend the meeting to allow for a changeover of witnesses.

10:04 Meeting suspended.  

10:08 On resuming—