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PART THREE: CHALLENGES AND CHANGES

RETHINKING PUNISHMENT

3.1 In this section of the report, we lay out what we see as the main challenges that lie behind Scotland's rising prison population and propose a number of changes to Scotland's criminal justice processes and practices. We believe that these changes would, if implemented, significantly reduce Scotland's prison population by better focusing the use of imprisonment on those who need to be there in all of our interests, making Scotland a safer and better place. The starting point and the touchstone must be this:

The Commission recommends that imprisonment should be reserved for people whose offences are so serious that no other form of punishment will do and for those who pose a threat of serious harm ⁵¹ to the public.

3.2 These are the right and proper uses of imprisonment. Scotland's problems with violence signal the need not to use prison more, but to use it better and more effectively in pursuit of these purposes.

3.3 The use of imprisonment is the result of decisions at every stage of the criminal justice process from arrest through prosecution, the court process and, ultimately, sentencing. This last stage of the process - sentencing - is a particularly complex task that requires that judges develop not only legal knowledge but also problem-solving skills. Judges have to take into account a very wide range of factors in deciding how best to handle each individual case. In terms of the principles that guide them in this challenge, they have to somehow balance the need to send strong messages that make clear what is right and wrong and that deter would-be wrong-doers; the need to make the punishment fit the crime; the need to repair harm when this is possible; the need to rehabilitate the offender; and the need to protect the public.

3.4 If we are to use prisons properly we need to break with the idea that the only real punishment is prison. Imprisonment is a relatively recent invention - one that made sense at a time when society needed something to replace transportation to the colonies. In many respects it is a 19th century strategy that has difficulties tackling 21st century problems. ⁵² It cannot be beyond our imagination to think of better ways of imposing punishment, of deterring offenders and others, of sending messages about right and wrong, of getting people to payback for their crimes, of repairing harm and of helping troubled people lead law-abiding lives. Some of these approaches can and should involve the offender having to give up something they value (their reputation, their money, their privacy, their free time, their freedom), some of them can and should involve the offender in paying back positively through facing up to what they have done, apologising, compensating the victim, doing unpaid work for the community, or working hard at tackling the problems behind their offending. In some cases, where both victim and offender are willing, restorative justice practices may have an important role to play.

3.5 Given our view that prison places should be reserved for those people whose offences are so serious that no other form of punishment will do and for those individuals who continue to pose a significant threat of serious harm to the public, it follows that in all other circumstances:

The Commission recommends that paying back in the community should become the default position in dealing with less serious offenders.

3.6 When issues of seriousness and dangerousness do not arise, the focus should be on finding the most appropriate and constructive way to get the offender to payback to the victim and/or society.In essence, payback means finding constructive ways to compensate or repair harms caused by crime. It involves making good to the victim and/or the community. This might be through financial payment, unpaid work, engaging in rehabilitative work or some combination of these and other approaches. Ultimately, one of the best ways for offenders to pay back is by turning their lives around. Perhaps surprisingly, offender rehabilitation is often a major concern of crime victims who want to make sure that no-one else suffers victimisation and who see the offender's rehabilitation as the surest way to secure this outcome. ⁵³

3.7 Reducing the inappropriate use of custody and building the credibility and effectiveness of community-based payback depend on getting better and smarter at dealing with offenders swiftly and efficiently. This requires the different professionals and agencies involved to move beyond their silos and to accept shared responsibility for solving the problem of delivering better and swifter justice for offenders, victims and communities. This is a key theme that we develop further below but Figure 8 provides a simple example of the kind of approach that we need.

FIGURE 8: AN EXAMPLE OF PROBLEM SOLVING IN ACTION

• When we visited the Liverpool Community Justice Centre, we observed a case where Judge Fletcher was considering making a community sentence but needed more information about the offender's circumstances before deciding what would be the best approach to take. He asked the probation officer in the court to make enquires there and then and bailed the offender for 2 hours to allow this to happen.
• During his lunch with the Commission members, Judge Fletcher excused himself having received word that the probation officer had completed the necessary enquiries.
• Being satisfied with what the probation officer reported, the Judge was able to make a community sentence that afternoon.
• We were struck by this simple example because, under current Scottish practice, the same sorts of enquiries often take 3 or 4 weeks. With that sort of delay, the offender has to be bailed (risking offending on bail and failure to attend the sentencing hearing) or remanded in custody, driving up the prison population.

PROSECUTION AND COURT PROCESSES

Diversion from prosecution

3.8 In order for procurators fiscal to reach a judgement that it is in the public interest to prosecute a crime, they must be convinced that no other way of dealing with the crime can be found that is fair and appropriate. But the range of available alternative options for procurators fiscal in many areas is limited to various kinds of warnings and fines. Though the Summary Justice Reforms ⁵⁴ are likely to increase the use of additional options, and though this is a welcome development, only a few areas have dedicated diversion schemes that can tackle problems linked to minor offending in a speedy and productive fashion.

3.9 Procurators fiscal nationwide need a wider range of options, including options involving mediation between victims and offenders, other forms of restorative justice and options that tackle the mental health, alcohol and drug related problems that often underpin minor offending. They also need up-to-date and accurate information about the services that are available.

The Commission recommends that the Government extend the types and availability of effective alternatives to prosecution coordinated by enhanced court-based social work units.

3.10 Making this kind of provision the norm nationwide would reduce the level of business in the courts to those cases that really needed to be dealt with in court. This would free up the courts to do their business more swiftly and more effectively; it would also provide a swifter and potentially more effective response to minor offending where it is linked, for example, to mental health and addiction problems. It avoids damaging people's future prospects by burdening them with a criminal conviction for a minor offence.

Court business

3.11 As we travelled around Scotland visiting prisons we heard time and again from offenders how they believed their sentence would not stop them from coming back to prison. Surprisingly this was not because they planned to commit any new crimes, but because of old crimes that had yet to be dealt with. Unfortunately, in the current system when a judge sentences an offender on one charge, he or she may not be able to do anything about any other charges the offender is facing - even if, as is often the case, he or she knows about them. This means that each charge is processed separately, requiring the offender to come back to court multiple times, and to be sentenced multiple times. To an offender, this creates a sense of hopelessness - 'why bother to cooperate with one sentence when no matter how well I do, I will be coming straight back?'. It leads to the possibility that an offender can do well on a community sentence and still receive a custodial sentence when coming back to court, despite not having committed any new offences. This presents another example of irrationality in our process that undermines the effectiveness of all sentences. It makes no sense that someone who is working hard and making a go of a community sentence should find that their effort has been pointless because an old case catches up with them. It is also extremely costly - and as recent cases have revealed sometimes dangerous - to transport convicted prisoners to and from court to face old charges.

3.12 In the information society of the 21st century, it should be possible, at least where guilt is admitted and no trial is necessary, to 'roll-up' all the cases that a person is facing so that they can get everything dealt with at once and get on with facing up to whatever sentence they get.

The Commission recommends that the Government legislate to place an onus on the Crown to seek to roll-up outstanding matters.

3.13 'Rolling-up' means gathering together all of an accused person's outstanding charges, adjudicating and sentencing on all charges at the same time. We think that this practice would give offenders more reasons for complying with their sentences. It would also make the business of the courts much more efficient - requiring fewer sentencing hearings and fewer pre-sentencing reports. It would mean speedier justice for victims too - though it would be important to keep victims informed about the process of 'their' case and how it had been dealt with.

The use of remand

3.14 We know that some of the most intensely crowded parts of the prison system are in areas housing prisoners on remand. This includes those awaiting trial and those who have been convicted and are waiting to be sentenced. The size of the remand population is growing faster than the overall prison population. Remand prisoners have been a steadily increasing proportion of all prisoners over the past decade. In 1997/98, 15% of the average daily population ( ADP) of prison was made up of remand prisoners; last year remand prisoners accounted for 22% of the ADP (a total of 1,567 inmates). ⁵⁵

3.15 Of those remanded in custody on 30 June 2006, between 21% to 47% did not end up serving jail sentences. ⁵⁶ If they do not need custodial sentences, then it is hard to understand why they needed to be held in custody in the first place. Sometimes people are remanded in custody because that is the only safe thing to do, but often remands are the result of lack of information or lack of services in the community to support people on bail. ⁵⁷ If judges are to avoid these unnecessary and costly remands they will need nationwide speedy access to information during bail hearings, and they need a wider range of bail options nationwide. These options should include community-based bail accommodation and, where it is necessary, tags and curfews on offenders in their own homes or in specialist bail accommodation. In order to reduce the number of accused persons failing to attend court, the costs and benefits of a text-alert scheme reminding accused persons of court dates should also be explored.

The Commission recommends that the Government extend the types and availability of bail-related information and supervision services across Scotland, including electronically monitored bail conditions, operated through enhanced court-based social work units.

3.16 We recognise that reoffending on bail is a serious problem. One way to tackle this is to reduce the need to use bail in the first place by proceeding to sentencing when guilt is established rather than delaying cases for reports (see below). When a delay is absolutely necessary, better bail support and supervision need to be made available to reduce reoffending on bail and to get people back in court to face sentence.

16 and 17 year olds

3.17 The Commission explored the use of imprisonment in relation to 16 and 17 year olds. Figure 9 shows that Scotland imprisons an unusually high number of under 18 year olds in comparison with European neighbours. At present, when 16 and 17 year olds are sentenced to detention, not only are their family ties, educational chances and job prospects damaged, they are forced to form relationships with and, no doubt, learn from more experienced offenders. We know that, whatever their sentence, those aged under 21 are the most likely to be reconvicted; 54% are reconvicted within 2 years - the rates of reconviction for young people that are imprisoned together will be higher still. By contrast, of those aged over 30, only 34% are reconvicted. ⁵⁸

The Commission recommends that the Government explore options for detaining 16 and 17 year olds in secure youth facilities separate from older offenders and those under the age of 16.

3.18 Our remit did not extend to considering in detail the interfaces between the Children's Hearings System and the criminal justice system. However, we note two significant concerns. Firstly, unlike in most other countries, at the age of 16, many young people who commit offences face a very abrupt transition from the Hearings System, where the emphasis is on helping them to develop and change, to the adult courts, where the emphasis is on punishing them. The suddenness of that transition makes no sense; young people judged not fit to decide what films they can watch or what drinks they can buy are nonetheless held fully accountable for their actions in adult court.

The Commission recommends that the Government re-examine the case for diverting 16 and 17 year olds to Specialist Youth Hearings with a wider range of options than are presently available in the Children's Hearings System.

3.19 Secondly, Scotland's age of criminal responsibility remains at 8 years of age, placing us significantly out of line with our European neighbours and calling into question our compliance with international conventions and agreements. We find that there is no persuasive argument whatever to support the view that an 8 year old child should be held fully accountable for his or her actions in an adult court.

FIGURE 9: PERCENTAGE OF PRISONERS UNDER 18 BY COUNTRY ⁵⁹

SENTENCING AND MANAGING SENTENCES

Rethinking sentencing

3.20 We have heard much evidence from Scotland, the UK, Europe and North America which suggests that bringing about progressive changes in criminal justice requires the different professionals in the system - including police, prosecutors, judges, social workers, prison staff and others - to share a commitment not just to the ideas driving the change but also to working together to make it a reality. It follows that the detailed work on moving towards the basic position on the use of imprisonment that we set out above must involve all of the relevant people and professions in the justice system and must draw on their knowledge, experience and expertise.

3.21 Working out in detail how to make the constructive changes that we propose touches on complex issues about the proper roles of the Government, the Parliament and the Judiciary in making and interpreting the law. In the current Scottish system, judges decide what to do in individual cases in the context of limited guidance from the Court of Appeal. There is great merit in judges having wide discretion - not least because this keeps politics out of individual sentencing decisions. However, it is possible to let judges have discretion in individual cases without sacrificing consistency and public accountability. In many other jurisdictions, penal codes are established by legislation or bodies are set up to provide sentencing guidelines. To drive forward consistency and improve the effectiveness of sentencing:

The Commission recommends that the Government establish an independent National Sentencing Council ( NSC) to develop clear sentencing guidelines that can be applied nationwide.

3.22 There is another important reason why we need a National Sentencing Council. Research has demonstrated and defence lawyers are well aware that similar cases are sentenced very differently in different courts - and even by different judges in the same courts. That is why defence lawyers end up 'judge-shopping' to try to get the best outcome for their clients. This is not just a waste of public resources - more importantly, it undermines public confidence in sentencing. The best way to address the problem of disparities in sentencing - which exists partly because judges get little guidance about sentencing and have little information about how their peers practice sentencing - is to use the National Sentencing Council to help to make the principles and practice of sentencing more transparent and explicit. This is not just about consistency across the country; it is also about consistency over time; we have seen an upward drift in both the number and the length of custodial sentences in Scotland in recent years. ⁶⁰

3.23 However, in order for judges to sentence consistently and appropriately nationwide, our view is that a new body - a sister-body of the NSC with equivalent status - is required to ensure consistency in the full range of community payback options across the country. Though the detailed arrangements for providing these options could vary according to local conditions and needs, no judge should ever feel forced to send an offender to prison because a more appropriate community payback option was not in place.

The Commission recommends the establishment of a National Community Justice Council ( NCJC) to lead the implementation of a new Community Supervision Sentence, develop improved services for ex-prisoners and drive forward changes in a diverse criminal justice system (see below).

3.24 The NCJC should involve representatives of the Community Justice Authority, criminal justice social work managers and other stakeholders. Appointed and charged by, but at arm's length from Government, the NCJC should provide national leadership in two key areas. Firstly, the NCJC would lead the implementation of the new Community Supervision Sentence (see below) - providing the range of robust and credible payback options that the courts need. Secondly, the NCJC would drive forward change for improved services for ex-prisoners, engaging with the Scottish Prison Service, the Parole Board for Scotland, and other stakeholders to ensure effective and joined-up working.

3.25 A frequent problem that we noted in our inquiry was that many of the professionals involved in sentencing, managing sentences and release and resettlement were at best reluctant and at worst fearful of engaging with the media. Though there may be good reason for this, in our view the media can and should play a key role in contributing to public debate about these issues. To that end, Scotland urgently requires a much more open dialogue between justice professionals and the media in which all parties play their respective parts responsibly and constructively.

The Commission recommends that the National Sentencing Council and the National Community Justice Council should be jointly charged with enhancing public understanding of and confidence in the credibility of both sentencing and the management of community sentences. The NCJC should work with the Scottish Prison Service and the Parole Board for Scotland to enhance public understanding of and confidence in the credibility of release and throughcare arrangements.

3.26 The Local Crime Community Sentences scheme ⁶¹ run by magistrates and probation staff in England and Wales provides one useful example of how professionals can work together with communities to develop better understanding of and support for the justice system.

Community sentences

3.27 We heard a lot of evidence about a lack of public understanding of existing community sentences. The public know little about why these sentences are used, about what they mean for offenders, and about what they achieve. Indeed, they are only likely to hear about these types of sentence when they attract media interest - either because they seem unduly lenient or because an offender reoffends. This lack of information and lack of clarity does serious damage to the credibility not just of community sentences but of the justice system itself.

3.28 We also heard evidence for and against creating additional community sentences. Clearly it makes sense to distinguish sentences that do not require ongoing supervision and management by a qualified social worker (for example, admonitions, fines and compensation orders) from those that do (for example, supervised attendance, probation, community service, drug treatment and testing). Rather than extending the number of available sentences, our view is that the key challenge is to make community sentences more meaningful, visible and immediate in their operation and impact.

The Commission recommends that judges should be provided with a wide range of options through which offenders can payback in the community, but that, where sentences involving supervision are imposed, there should be one single Community Supervision Sentence ( CSS) with a wide range of possible conditions and measures. By payback, we mean finding constructive ways to compensate or repair harms caused by crime. It involves making good to the victim and/or the community whether by unpaid work, engaging in rehabilitative work that benefits both victims and the community by reducing reoffending, or some combination of these and other approaches.

FIGURE 10: PAYING BACK INANDTOTHE COMMUNITY

3.29 Figure 10 summarises in simple terms the central role that the Community Supervision Sentence ( CSS) can and should play in the proposed framework, and it outlines some of the different kinds of payback that might be involved when supervision is required. What we refer to as 'paying back by working at change' represents an important option when offenders have significant problems that underlie their offending. This type of paying back by making progress would be central to the CSS. Without tackling these problems - and confronting and challenging offenders' attitudes and behaviours - the CSS will not be effective in helping offenders to change. Figure 11 illustrates some of the types of problems that underlie offending and therefore some of the range of services that would need to be available nationwide to allow the CSS to provide rehabilitative opportunities. These problems do not disappear when someone goes to court or to prison; they wait at the door. Too often, services do not. Our evidence-gathering leads us to conclude that many members of the public understand very well that if these problems are not tackled then the chances of making real progress by turning lives around and reducing reoffending are limited or lost. Whenever a community sentence is imposed or a prisoner released, if we are to maximise the chances of real progress, then the support needs to be immediate and effective.

FIGURE 11: WORKING AT CHANGE: REHABILITATION IN THE CSS

3.30 In our evidence-gathering visits, we were repeatedly struck by the fact that making community sentences work depended on the commitment of the different agencies and professionals involved. It also depended on the professionals and agencies sharing a problem-solving approach to tackling crime and doing justice in the community. This is a theme we have already mentioned and to which we return below, but Figures 12 and 13 below illustrate some of the key findings from our local and international visits.

FIGURE 12: PROBLEM SOLVING PRACTICE IN SCOTLAND

• In Falkirk, local sheriffs, procurators fiscal, police and social workers meet bi-monthly in a Criminal Justice Forum.
• Their cooperation has enabled them to organise remand (sentencing) courts on Thursday mornings - and order offenders sentenced to community penalties to report to the Criminal Justice Social Work ( CJSW) Office on Thursday afternoons. The court and the CJSW communicate electronically.
• The single CJSW office hosts community service, probation and drug treatment and testing orders, making it simpler for offenders to cooperate.
• Community service is not just immediate. It is also useful for offenders; it is organised to help them develop skills and qualifications while they pay back that can help them out of crime and into work. Connections have been made with a local college to facilitate this. CS is useful to communities in and through the work that the offenders do. Proceeds of sales of products from the CS workshop are regularly donated to suitable charities.
• Efforts are made to make the public aware of community service, for example through presentations at community councils and regular open days.

FIGURE 13: PROBLEM SOLVING COURTS

• The Liverpool Community Justice Centre aims to reduce crime and build public confidence in the justice system. It combines the powers of the courtroom with a range of on-site community resources to tackle the problems behind offending.

The on-site problem solving team includes the Judge, the Crown Prosecution Service, the Probation Service and the Youth Offending Team. Other on-site services address drug and alcohol problems, debt and housing issues. Volunteer mentors are available to provide practical support.

The Judge uses regular reviews to check up on and encourage offenders' progress.

• The Red Hook Justice Centre seeks to solve neighbourhood problems like drugs, crime, domestic violence and landlord-tenant disputes. A single Judge hears neighbourhood cases; the goal is to offer a coordinated approach to people's problems. An array of sanctions and services, including community restitution projects, on-site educational workshops, drug treatment and mental health counselling are rigorously monitored to ensure accountability. The courthouse engages local residents in 'doing justice' via mediation, Community Service ( CS) projects that put local volunteers to work and a youth court where teenagers resolve actual cases involving their peers.
• In New York, the Midtown Community Court aims to make justice visible and swift. Community service projects are well-publicised and offenders start CS within 24 hours of sentence. Three out of 4 complete their orders. The use of CS has risen from 29% to 69% of cases since the court was established. Neighbourhood crime is down.
• Bronx Community Solutions seeks to reduce reliance on expensive and ineffective short-term jail sentences, and build public confidence that the system is holding offenders accountable and offering them the assistance they need to avoid further criminal conduct. The project is the USA's largest experiment in problem-solving justice.

Rather than the Midtown or Red Hook set-ups where they have their own separate community court, Bronx Community Solutions is run from within the Bronx's actual criminal court.

All judges in the Bronx have a broad set of sentencing options at their disposal, including drug treatment, job training, family services and mental health counselling. Offenders undertake community service work in local neighbourhoods. Project staff work with residents and community groups to create community service options that respond to local problems.

Sentencing and the management of sentences

3.31 The evidence that we reviewed, our visits and our own deliberations have stimulated some interesting ideas about how we might develop the structures and practices of making and managing sentences. At present, judges are often vulnerable to unfair criticism because the logic of the sentencing decision is not always transparent or accessible to the wider public. To some extent this is a result of the complexities of sentencing itself and of the different problems that judges face at each stage of the process. However, we believe that both the processes and the outcomes of sentencing decisions could be made more open and accountable.

The Commission recommends the development of a 3-stage approach to sentencing and managing community sentences: Stage 1: How much payback? Stage 2: What kind of payback? Stage 3: Checking progress and payback.

FIGURE 14: THE THREE-STAGE SENTENCING FRAMEWORK

a. Stage 1: How much payback? The judge uses information about the offence and the specific circumstances of the offence, provided by the procurator fiscal and the defence agent, to make a judgement about the level of penalty that is required. The key principle here is that the punishment must never be greater than is proportionate to the offence. Developing more detailed guidelines for making such judgements should be one task for the National Sentencing Council.

b. Stage 2: What kind of payback? The judge and a court-based social worker (and in some cases other specialists) discuss how best to solve the problem of finding the most appropriate and constructive form of sentence to enable the offender to pay back to the victim and/or society. This is a complex task in which the judge must make the final decision about which kind of payback makes best sense and about any issues of public safety that may arise and how that might be best managed.

In many cases better resourced court-based social work units, working day in and day out alongside the judges, would be able to get the information that judges need there and then, reducing delays and the need for bail or remand. In other cases, particularly where issues around risk of serious harm arise, it will be necessary for the case to be adjourned while social workers carry out more detailed enquiries. But the level of time it takes to carry out these enquiries should reflect the seriousness of the case.

Another key benefit of locating the responsibility for assisting the judge with the court-based social work team is that it would free up community-based criminal justice social workers from writing reports - enabling them to focus on making community supervision sentences work. Comparing 1991 to 1996 with 2002 to 2007, the number of reports completed by social workers has almost doubled; ⁶² this means that social workers are buried under paperwork instead of being busy helping people sort out their problems. It also acts as a brake on the development of better supervision practice.

Looking beyond the role of the judge and the court-based social worker, our view is that offenders should be required to engage with the judge and the court-based social worker at this stage of the process to underline their responsibility to pay back. It is also the case that some kinds of payback just will not work without their agreement. For example, it is neither possible nor ethical to force people to change. But we are clear that if people refuse to pay back for their crimes, they must face the consequences.

In developing more detailed principles for making decisions about what forms of payback would be most appropriate in particular circumstances, the National Sentencing Council would play the lead role, but it would consult with the National Community Justice Council ( NCJC) in this task.

c. Stage 3: Checking progress and payback. The last stage is concerned with the management of community supervision sentences. Once the community supervision sentence ( CSS) is imposed, the process of implementing it must be immediate. Offenders should come to court expecting to start their sentence there and then; the offender's induction to the CSS should start as soon as the sentence is passed - literally immediately. And once the sentence is up and running, the offender must be supported in paying back and being held accountable for paying back in whatever way the court has decided. To make sure that this happens, we see merit in a new kind of 'progress court'. Because it would not be practical for all judges to preside in these progress courts, and because there is evidence that the experience of conducting these reviews requires and develops specialist knowledge and skills in judges, ⁶³ our view is that particular judges in each area should carry out this specialised task. To make a clear link to Stage 2, they should be assisted by the court-based social worker who was involved at that stage.

The Commission recommends the establishment of progress courts that enable swift and regular review of progress and compliance with community sentences - and that deal robustly with offenders who do not payback.

Where there was a dispute about the facts concerning compliance and/or where penalties for non-compliance were likely to be used, the offender would be entitled to legal representation and legal aid.

The needs for more immediate information, for more immediate induction to community sentences and for the court-based social worker to play a key part in the progress court reinforce the case for significantly enhancing the resourcing of court-based social work units. Their roles in relation to diversion from prosecution and bail information and supervision further underline the point.

An important merit of the progress court is that it would end the current situation where the progress of community sentences is invisible to both judges and communities - and where they only hear about community sentences when they fail. Our view is that this skews perceptions and undermines both judicial and public confidence. As we have already indicated, other initiatives to make the payback involved in Community Supervision Sentences more visible will be required too. The public have a right to know - routinely - how much has been paid back and in what ways. This does not and should not mean stigmatising and shaming offenders as they go about paying back; to do so would be counter-productive. But it does and should mean that much greater effort goes into communication with the communities in which payback takes place.

There is a great deal of convincing evidence that the process of giving up offending is extremely difficult and complex - especially for persistent offenders. ⁶⁴ Just as we understand that people who are dependent on drugs (including alcohol and tobacco) often relapse when trying to stop, so we need to better understand that for many offenders there will be lapses and setbacks too. It is in all of our interests that the new progress courts would deal with lapses and setbacks by the offender as swiftly and effectively as possible. Where these setbacks raise concerns about public safety, the progress court will need to take swift and proportionate action. But they would also have an equally crucial role in encouraging, recognising and supporting progress. As in the successful specialist drugs courts, the emphasis would be on persevering, where possible, in making community sentences work. Again, the National Sentencing Council would have a role in developing principles about how the progress court should operate, in partnership with the National Community Justice Council.

Short prison sentences

3.32 Figures 15 to 17 show respectively: the percentage of all custodial sentences passed in the Scottish courts that were for 6 months or less; the types of crime and offences for which short sentences are given; and how quickly and in what timescales ex-prisoners who have served different prison sentences return to custody after having been reconvicted.

FIGURE 15: CUSTODIAL SENTENCES BY SENTENCE LENGTH (2006/07) ⁶⁵

FIGURE 16: TYPES OF CRIMES AND OFFENCES COMMITTED BY SHORT SENTENCE PRISONERS (2006/07) ⁶⁶

FIGURE 17: RETURN TO CUSTODY WITHIN 2 YEARS BY LENGTH OF SENTENCE ⁶⁷

3.33 What these Figures demonstrate is this. Firstly, 83% of all sentences passed in 2005/06 were for 6 months or less. Secondly, for the most part, these sentences are not dealing with very serious crimes; serious crimes of violence or indecency account for less than 2% of short sentences. Thirdly, we have already noted (above) that almost half of those receiving custodial sentences have been in prison more than three times before; and that between 15% and 22% had been in prison more than ten times before. ⁶⁸ The problem of reconviction by those serving short term sentences is even more acute; those released from short sentences are reimprisoned more quickly and in greater number than those who serve longer terms.

3.34 Given that the average number of days served in short sentences (under 6 months) is just 24.2 days, ⁶⁹ it is obvious that prisons can do little or nothing in that time to reduce the likelihood of offending - but, by breaking positive ties and building negative ones, the very experience of imprisonment can do a great deal to increase reoffending.

3.35 It could hardly be clearer that short-term imprisonment fails to end criminal careers. So, while short sentences may seem to provide welcome respite, any effect is fleeting and in the medium and longer term they clearly fail to protect the public and to safeguard communities. Short sentences are not a solution to the problem of persistent offending; they are a cause of it.

3.36 Although our view is that the introduction of the Community Supervision Sentence and the approach to sentencing outlined above could make significant contributions to tackling the problem of short sentences, these measures in themselves will not be enough to make paying back in the community the default position. This requires legislation.

The Commission recommends that the Government bring forward legislation to require a sentencing judge, who would otherwise have imposed a sentence of 6 months imprisonment or less, to impose a Community Supervision Sentence instead, unless he or she is satisfied that a custodial sentence should be imposed having regard to one or more of the following circumstances:

a. violent and sexual offences that raise significant concerns about serious harm

b. when the offence constitutes a breach of bail conditions

c. when the offender is already subject to a Community Supervision Sentence and/or has a significant history of failing to comply with community supervision or conditional sentences (see below)

d. when the offender is subject to a release licence

e. when the offender does not consent to rehabilitative elements in a Community Supervision Sentence

f. any other sentence of imprisonment then being served by the offender.

3.37 If a custodial sentence of 6 months or less is imposed, the judge will require to state when imposing the sentence the reasons, with reference to these circumstances, why only a custodial sentence could be imposed.

3.38 A risk in taking this legislative approach is that where judges currently impose custodial sentences of less than six months, they will simply impose longer sentences to make sure that offenders still go to prison. This might increase rather than reduce the prison population. Another risk is that Community Supervision Sentences might become too heavily loaded with requirements that increase the likelihood that they will be breached. Our position is that these risks can and must be explicitly acknowledged and addressed through dialogue with judges and others; the National Sentencing Council would need to play a key role in this dialogue.

Conditional sentences

3.39 A considerable and compelling body of international evidence ⁷⁰ which is further supported by our own evidence-gathering, suggests thatprisons are at their best in dealing with longer-term prisoners. Where seriousness and dangerousness require longer prison sentences, these sentences allow prison staff and prisoners opportunities to develop relationships, to plan for the sentence, and to create opportunities for the prisoner to tackle his or her problems and to change. We also heard that effective risk assessment and risk management takes time and skill; if we want it to be done safely, we cannot expect it to be done quickly. To allow prison staff to focus more effectively on longer-term prisoners by providing an additional mechanism to reduce the use of prison sentences, we see considerable merit in the introduction of a new sentence that sits directly between community sentences and custodial sentences. For these reasons:

The Commission recommends that the Government bring forward legislation to enable a sentencing judge who has formed the view that a custodial sentence is appropriate, to consider whether it should be served as a Conditional Sentence. A Conditional Sentence means that the period of custody is imposed but suspended subject to the offender keeping to a strict set of conditions which may include any combination of:

a. Electronically monitored home detention ('tagging').

b. Unpaid work of benefit to the community.

c. Payment of financial penalties.

d. Participation in rehabilitative activities.

e. Other conditions required to reduce risk of serious harm.

In deciding that a Conditional Sentence should not be imposed and that a custodial sentence must take immediate effect, the judge may have regard to the following circumstances:

a. violent and sexual offences that raise significant concerns about serious harm

b. when the offence constitutes a breach of bail conditions

c. when the offender is already subject to a community supervision sentence and/or has a significant history of failing to comply with community supervision or conditional sentences

d. when the offender is subject to a release licence

e. when the offender does not consent to rehabilitative elements in a conditional sentence

f. any other sentence of imprisonment then being served by the offender.

3.40 Once again, the National Sentencing Council would need to play a key role in establishing clear principles to be applied to such decisions.

3.41 If the conditions of a conditional sentence were broken, the progress court may require the suspended custodial sentence to be served in full, although it should take into account whatever payback the offender has undertaken in the community up to that point.

3.42 There is a risk that the introduction of a Conditional Sentence would send a confusing message to the wider public, blurring the boundary between prison sentences and community sentences. However, the Commission's view is that there is merit in having a sentence that sits precisely between a Community Supervision Sentence (as described above) and a prison sentence. In a Conditional Sentence, the threat of prison is more immediate and more specific than for a Community Supervision Sentence; the custodial sentence hangs over the head of the offender who knows exactly what he or she can expect in terms of prison time if they do not stick to the conditions. All the time that the sentence is running, the prospect of having to finish it in custody remains in place to keep the offender on track. To this end, offenders subject to Conditional Sentences would be subject to regular reviews in the progress court.

3.43 As a sentence imposed by a judge, the Conditional Sentence represents a more appropriate and transparent use of electronically monitored home detention than its current use by prison governors to facilitate early release. Though we recognise that the current Home Detention Curfew Scheme ( HDC) plays a useful role in reducing overcrowding, it is fundamentally inconsistent with the clarity and transparency in sentencing that the public need - and with the right of judges to determine sentence.

The Commission recommends that, subject to the full implementation of our other recommendations, the current Home Detention Curfew scheme should be terminated.

COMMUNITY JUSTICE, PRISONS AND RESETTLEMENT

Reconviction rates

3.44 In Scotland in recent years, legitimate concern has been expressed about the rates of reconviction of sentenced offenders and this has affected public confidence in the effectiveness of sentencing, of prisons and of criminal justice social work services. In recent years, rates of reconviction for those sentenced to prison and probation show little change, but rates of reconviction for community service have been falling.

3.45 If we look at Scottish rates of reconviction in international context, what is surprising is how little reconviction rates vary across the English-speaking world, despite very different systems of sentencing and punishment. ⁷¹ Criminological research suggests that there is an obvious reason for this. The most important drivers of offending and reoffending are beyond the reach of the penal system; some suggest that recognition of the social and cultural causes of reoffending makes it unwise to overstate the role that the penal system can play in reducing reoffending. ⁷² To do so, it is argued, is to risk bringing the penal system into public disrepute by ramping up and then failing to meet unrealistic expectations.

3.46 Scotland's well-respected Violence Reduction Unit has promoted the development of a prevention-focused public health approach to reducing crime, rather than expecting the justice system to solve social problems. Moreover, the analysis of the current use of imprisonment that this report has provided makes clear that when the penal system is used to tackle social problems, we end up with prisons over-flowing with the needy, the troubled and the troubling. Scotland's enduring and growing problems with the imprisonment of women lend support to these arguments.

FIGURE 18: RECONVICTION RATES IN SCOTLAND73 ⁷³ (Percentage reconvicted within 2 years)

3.47 While we see merit in these arguments, we refuse to allow this to be an excuse for failing to get the best out of our justice system. We have seen evidence here in Scotland and elsewhere of excellent practice and of poor practice in tackling reoffending. Scottish reconviction rates may reflect deeper social problems and they may be in line with those of other countries, but this does not mean that we should settle for poor outcomes of imprisonment or community sentences. Put simply, the challenge is to strive continuously to make the best of Scottish practice the norm nationwide, and to make Scottish practice the best in the world.

3.48 However, systems and practices do need to be rooted in realism and in the best available evidence about how to tackle reoffending. The evidence tells us that the reality is that prisoners and offenders under community supervision very often face serious and chronic disadvantage and exclusion which plays out in many and varied ways; typically, they face serious problems with accommodation, drink, drugs, housing, relationships, money and work - and these problems underlie their offending. ⁷⁴ While it is right to focus on repairing the harms that crime causes, it is equally important to tackle the ills that provoke it. They are not easy problems to solve; it takes time, skill and patience to tackle these kinds of issues. But if joined-up services, intelligent strategies and effective practices are not in place nationwide, then the chances of offenders reoffending will not be reduced and that means we all suffer - victims, offenders, families and communities.

Community justice and criminal justice social work

3.49 In an attempt to encourage the development of more joined-up services, strategies and practices, in 2005 the Parliament passed the Management of Offenders (Scotland) Act which set up eight Community Justice Authorities ( CJAs) and charged them with developing plans to reduce reoffending through coordinated efforts involving prisons, police services, local authorities, health boards, voluntary sector organisations and others. The Act also established a National Advisory Body ( NAB), chaired by the Cabinet Secretary for Justice, to approve the local plans. The CJAs and the NAB have been in operation for less than two years. Though it is too soon to assess their successes and failures, we remain concerned about the capacity of the CJAs to deliver on reducing reoffending, given their very limited powers and resources.

3.50 Leaving aside these new organisational structures, we have identified a need for renewed vision, visibility and leadership of these services. Community justice and criminal justice social work services are pivotal to making the reforms proposed above work; these services need to be credible and to enjoy the confidence and support of Scottish judges and Scottish communities. This requires the proper resourcing of community justice and criminal justice social work - not just in financial terms, but in terms of boosting the specialist knowledge and skills of the workforce, their integration and standing within the criminal justice system, and their standing and status within local authorities and local communities too. As we have already noted, it also requires a fundamental shift in the duties of the criminal justice social worker away from report writing and form filling and into the delivery of real support and robust supervision to offenders. Rather than being so busy writing reports that they cannot effectively supervise the offenders that the courts and prisons send their way, we need to find ways to release their key professional skills in helping troubled and troubling people comply with supervision and helping them tackle their underlying problems. That way, social workers can play their vital part centre-stage in a joined-up justice system that is more immediate, more efficient and more effective.

FIGURE 19: JOINED-UP JUSTICE

The Commission recommends that the National Community Justice Council ( NCJC) should be charged with and resourced to provide dynamic leadership in developing the status, visibility, quality, consistency and credibility of criminal justice social work nationwide.

3.51 It is equally clear to us that social workers supervising community sentences and released prisoners cannot tackle offenders' complex and varied problems on their own. In particular, we received concerning evidence about the need for improvements in community-based health care alternatives for offenders with mental health and/or drug and alcohol issues. We were surprised and disappointed to learn, for example, that around 70% of prisoners being released in Scotland do not have a GP. ⁷⁵ For a long time, these social and health related needs - and the role that their neglect plays in driving the use of imprisonment - have been recognised in connection with women offenders. But they are common amongst men who offend too. Making support available to ex-prisoners is not just the job of social workers; it is in society's interests that all public services - education, employment, health, housing and so on - play an active part in helping ex-offenders to lead a law-abiding life in the community. Communities also need to play their part in giving people who have served their sentence a fair chance for a fresh start. Without a fair chance, ex-offenders are more likely to return to their old 'friends' and their old ways.

3.52 The Commission finds that the lack of progress in developing services that are available nationwide to address the social and health related needs of many offenders condemns our prisons to deputising for health and welfare services. That is wasteful and wrong and it has to change. The Commission further finds that if public services and local communities exclude ex-offenders, all of us suffer because the likelihood of reoffending is increased. Ultimately, turning lives around is the best way to protect the public.

The Commission recommends that the Government promote recognition across all Government departments, all public services, all sectors and all communities of a duty to reintegrate both those who have paid back in the community and those who have served their time in prison.

FIGURE 20: PROMISING DEVELOPMENTS IN SCOTLAND

• Sacro's Community Links Centre ( CLC) in Edinburgh works with short-term prisoners to assist their resettlement. Prisoners are visited in prison shortly before their release so that the needs that lie behind their offending can be assessed. Plans are then developed to address these needs. Once released, ex-prisoners can access a 'one-stop shop' in the community where they can access the supports and services that help them to tackle issues around benefits, housing, health and employability services.
• The Wise Group's Routes out of Prison project employs ex-offenders and people with experience of disadvantage as Life Coaches to support short-term prisoners just before and after their release. When released service users are signposted to other relevant agencies and, if job-ready, also work with employment consultants on finding employment or training. Initial evaluation findings show that Life Coaches make connections with a high proportion of prisoners, including those with complex needs, and that the most salient aspect of the support for many service users is the quality of the relationship with their Life Coach.
• The 218 Project in Glasgow works with women offenders to address the root causes of their offending. It offers a person centred programme of care, support and development designed to stop women offending by tackling the issues that drive it, including drugs, alcohol, abuse and poverty.
  
  218 works with women at any and every stage in the criminal justice process - at arrest, before prosecution, on bail, on community sentences and during and after imprisonment.
  
  The service involves a holistic approach that tackles the issues that arise in relation to their offending behaviour, including a structured programme as well as one-to-one interventions.

Prisons

3.53 We were not asked to explore prison regimes and conditions. Rather, our task was to consider how imprisonment is used. That said, we did note with concern some evidence which we received about the manner in which Key Performance Indicators and financial incentives and disincentives in the Scottish Prison Service might contribute to problems with overcrowding. We were surprised to discover, for example, that when prisoner numbers exceed the contracted limit for a prison, the prison receives £10 per prisoner for every night that the extra numbers are accommodated. Similarly, 'under-occupancy' means that the prisons 'lose' £6.50 for every 'empty bed'. Though we recognise the reasons behind such financial systems, arguably they send the wrong message. Likewise, we note that the contract terms which a previous Executive agreed with Serco (the private company who run Scotland's only existing private prison) make the costs of exceeding agreed prisoner numbers at HMP Kilmarnock prohibitive. This means that despite the current over-crowding crisis, HMP Kilmarnock continues to operate under its capacity.

3.54 We were even more troubled by evidence, not least from prisoners and ex-prisoners themselves, about the levels of illegal drug misuse and illicit use of mobile phones in prison settings. We are well aware that similar problems exist in all jurisdictions - and are in large part an inevitable consequence of forcibly co-locating and confining offenders with drug problems and those involved in the drugs trade. However, we do not accept that these abuses can or should be tolerated - tacitly or explicitly - and we applaud those prisons that have made progress in addressing these issues. Over-crowded prison systems too often are forced to settle for keeping people securely in custody and maintaining order.

The Commission recommends a more restricted and rational use of imprisonment to enable the Scottish Prison Service to get better at regulating prisons and prisoners, at using accommodation resources intelligently to incentivise prisoners to come off and stay off drugs (for example, by providing drug free wings) and at providing and prioritising rehabilitation.

Parole and recall

3.55 We also heard worrying evidence about the number of ex-prisoners on release licences being returned to prison not because of reoffending but because they had not stuck to the other conditions of their release licences. As Figure 21 (below) indicates, and as we have already noted, recall rates are rising rapidly while the percentage of prisoners being granted parole is falling. Research in other countries suggests that these changes may be less to do with managing real risks to the public than with those concerned becoming more defensive and risk-averse for fear of being blamed when things go wrong. ⁷⁶ If this is the case in Scotland then we should all be concerned - firstly because people may be in prison who do not need to be there and secondly because this may well damage them and their prospects for successfully resettling in the community when they do get out. Once again we need to be clear that this harms all of us.

3.56 We believe that further research is required to explore issues around decision-making about release from and recall to prison in Scotland. However, we do not need research to convince us that the Parole Board needs to work closely and constructively with the Scottish Prison Service to ensure that prisoners are gaining access to the necessary offence-related programmes and with criminal justice social work services to continuously improve ex-prisoners compliance with release licences. If, as we have noted above, offenders on the Community Supervision Sentence will face lapses and setbacks, the same is true of ex-prisoners. Managing these lapses and setbacks constructively in the community, when they do not suggest significant risks of serious harm to the public, requires that the Parole Board is granted more powers and more options when dealing with people who have not kept to their licence conditions. This should avoid unnecessary recalls to prison, particularly where the recall is the result of an offender's problem with alcohol or drugs.

The Commission recommends that the Parole Board should be provided with additional options to better manage release and compliance with licence conditions, including drug treatment and testing services and extending electronically-monitored home detention.

FIGURE 21: PERCENTAGE OF PRISONERS RELEASED ON PAROLE AND NUMBER RECALLED TO CUSTODY ⁷⁷

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