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PART FOUR: CUSTODIAL SENTENCES AND WEAPONS (SCOTLAND) ACT 2007

Background

4.1 The Cabinet Secretary for Justice asked us to consider the implementation of the Custodial Sentences and Weapons (Scotland) Act 2007. The 2007 Act, if implemented will significantly alter release arrangements that apply to prison sentences. The existing system (under the Prisoners and Criminal Proceedings (Scotland) Act 1993) determines an offender's release by length of sentence, not the risk to the public that he or she may pose. The system is difficult for the public to understand. Political and public debate has not been helped by a persistent confusion between unsupervised and unconditional release. The current early release arrangements are shown in Annex E. It is a misconception that the 1993 Act allows unconditional release; at present every released prisoner remains liable to recall to custody to serve the 'unexpired' part of their sentence if they reoffend before the release licence expires. But, the 1993 Act does mean that for those sentenced to less than 4 years, release at the halfway point is automatic and, in most cases, there is no compulsory post-release support or supervision.

4.2 So the present situation is that release can be automatic and unsupervised, or automatic and supervised, or discretionary and supervised. This lack of clarity in what sentences and post-release 'conditions' actually mean undermines the credibility of the criminal justice system. There is consensus across all political parties and key stakeholders that the automatic, unsupervised and unsupported release of prisoners should end.

4.3 The Cabinet Secretary set us an objective to compare the underpinning rationale with current law and practice, including the impact for courts, prisons and community justice services of the early release provisions of the 2007 Act.

The principles of the 2007 Act are to:

• end the current inflexible system of automatic and sometimes unsupervised release determined by sentence length not risk;
• provide a clearer, more understandable system that will increase public confidence, enhance public protection and reduce reoffending through end to end management of sentences;
• take account of public safety by targeting risk;
• have victims' interests at its heart; and
• fulfil society's expectations for punishment and deterrence but also give offenders rehabilitative opportunities.

4.4 The 2007 Act while ending unsupervised release, does not end automatic release. There will still be automatic release at the three-quarter point of the sentence if not before and it is important that public expectations are not raised. Replacing the current arrangements with a combined sentence that includes a specified 'custody part' and a specified 'community part' may assist in providing a clearer, more understandable system for managing offenders. The Act does provide greater scope for the effects of the sentence to be explained and this may help improve public knowledge and understanding of the criminal justice system. However, the Act still permits the sentence that the judge passes in court to be altered in its effects by decisions taken by 'Scottish Ministers' (meaning officials in the Scottish Prison Service) or by the Parole Board. So, plea-bargaining, reduction in sentence for early plea of guilt and release on home detention curfew continue to muddy the waters and undermine the credibility of the system.

Evidence

4.5 Most of those who gave evidence to us supported the principles of the 2007 Act but thought there were significant problems with some of the measures it contains. Clarity in sentencing was considered to be crucial in building confidence in the criminal justice system and there was overwhelming support for a statutory requirement on judges to explain publicly the effect of sentences, but the potential for lack of clarity noted above was widely recognised. Other concerns included:

Risk assessment: Under the proposed arrangements in the Act, for every sentence of 15 days or more, an assessment will have to be made of the risk of releasing the offender at the half way stage as opposed to keeping him or her in prison for a period up to the three-quarters stage of the sentence, to protect the public. It will be highly artificial to have such a process at the lower end of this sentence range. Almost by definition, the risk to the public from someone sentenced to 15 days will be low. The protection of the public from keeping a person in prison for 12 days rather than 8 is negligible. As sentence length increases, there is some significance in the extra length of time that might be served in prison under the proposed new arrangements in terms of public safety. More worryingly, the time spent on considering the risks and licence requirements of very short sentence prisoners will swamp the system and deflect attention from those prisoners whose risk or harm is significant. These considerations already take place under existing arrangements for sentences over four years and for certain sex offenders. This is the group where public protection issues are most significant. Extending the arrangements down to 15 days will not yield a proportionate increase in public safety - and may jeopardise it by overburdening the system and distorting its proper focus.

Licence conditions: The proposals in the Act state that 'The licence conditions will enable provision for a variable and flexible package of measures including supervision if required'. But how meaningful is a package that can be created while the prisoner is in custody for as little as two weeks and under licence for as little as another two? If the answer is that there will simply be a good behaviour condition for this level of sentence, it starts to look more and more like the present system.

Continued detention: It is proposed that if a prisoner serving 15 days is considered an unacceptable risk to the public at the half-way point, his or her case will be referred to the Parole Board. To consider the case properly, papers will be need to be prepared and sent to the Board, including a report from the judge. All this will take time and would require the Board to hold an oral hearing at which the prisoner would be in attendance. The Parole Board's consideration, decision-making and provision of the written decision will take at least a further two weeks by which time the shorter sentences would have ended. While there would be more time with longer sentences, over 80% of sentences imposed in a year are for 6 months or less. The right of review by the Parole Board would therefore be meaningless in a substantial proportion of cases given the time needed to process the case properly and fairly. Recently published expert legal opinion suggests that this may leave Scottish Ministers open to legal challenge ⁷⁸ and potentially to claims for damages.

4.6 These reservations are important. But equally, there is clear evidence that release without support and, where need be, supervision leads to many offenders returning to chaotic lifestyles with no family support, home or services. It is therefore no surprise that reoffending rates are high and that many offenders end up serving a life sentence by instalments. We strongly support end-to-end sentencing and support for all offenders on release from prison.

Impact

Prison population: It was estimated that the Act would, if implemented, increase the prison population by between 700 and 1100. The increase in the prison population since the Act was introduced - and the increase in the number of short-term prisoners suggest that these estimates may need to be recalculated. Moreover, if judges use the new power to impose custodial parts of over 50% to a significant degree, the increase will be higher still since this was not allowed for in the initial projections. This creates the risk of serious overcrowding or costly investment in new prisons. This will require additional resources which may be diverted to prisons from elements of the criminal justice system that may be more effective in reducing crime; the police, expanded drug treatment programmes and the more focussed community supervision sentences that we have proposed.

Courts: The new arrangements will have a minimum impact on the courts. However, there could potentially be an increase in the number of appeals against sentences. Any increase is almost certain to stem from those offenders who are given more than the 50% minimum custody part. There was widespread support for the courts to make clear in open court the effect of the sentence. Such transparency in sentencing, and what it actually means in practice, should build public confidence in the system.

Community Justice Services: In relation to the community, the proposals would see all offenders (except the few on short sentences of less than 15 days) being subject to a custody and community sentence. When the offender moves to the community part of the sentence he or she will be subject to licence conditions and supervised, where necessary, by criminal justice social work services. The costs to local authorities would come from the much higher numbers of offenders subject to some form of community intervention or supervision during the community part of the combined sentence.

The monitoring and supervision of all offenders in the community is crucial to reducing reoffending. It is important to re-integrate an offender back into the community and to continue the rehabilitation process after a period in custody. There will need to be adequate resources in place to provide the levels of supervision and support required if public confidence is to be enhanced. In cases where the risks of harm to the public are not great, support may not need to be provided by a qualified social worker. But low risk of harm prisoners can be at high risk of reoffending (in minor ways). Many will need support and encouragement to keep on the straight and narrow. Community justice services will need to work creatively with offenders, families, voluntary agencies, other public sector agencies and communities to work out how best to support such offenders.

Key Findings

• Joint working in risk assessment has significant resource implications and the high number of short-term sentences could have the unintended and unfortunate outcome of diverting resources from those who require intensive risk assessment.
• The level of 'supervision' required should be proportionate and tailored to the risk of both harm and of reoffending that each individual offender presents.
• Prison numbers could increase by between 700 and 1100 (that is, 2 new prisons).
• Assessment of the risk of serious harm would not be possible for the majority of offenders spending less than 6 months in custody. Short-term offenders instead need an assessment of needs.
• Situations and circumstances change when an offender goes back into the community, so social work, police and voluntary agencies must be resourced to continue assessing and addressing risk and need.

Recommendations

• If the Act is to be implemented, then consideration should be given to a staged implementation prioritising those sentenced to 2 years or more (6% of custodial sentences ⁷⁹). If and only if more short-term sentences are replaced with community sentences, then the practical problems with implementing the Act will be diminished.
• Those sentenced to less than 2 years (94% of custodial sentences ⁸⁰) should be released conditionally and with support and supervision at the halfway point of the sentence.
• Supervision need not always be undertaken by qualified social workers where low levels of risk of harm permit others to take the lead.
• The Act should not be implemented until the resources are in place for joint risk and needs assessment and supervision/support in the community.

Summary Recommendation:

4.7 Having reviewed the evidence about the likely impact of the Act on the prison population and about its workability in terms of the effective management of prisoners in custody and on release, we have some serious concerns about the Act. In our view, the main problem with the Act is that the14-day lower limit is simply not practicable. The Commission supports the main principle of the Act; that all released prisoners should be supported in the community on their release so as to assist in their resettlement and reduce their offending. Given the Commission's recommendations concerning using community supervision sentences and conditional sentences.

The Commission recommends that, if the Act is to be implemented, its implementation must follow the implementation of this Commission's other recommendations and the achievement of a reduction in the short sentence prison population. Thereafter, the provisions around risk assessment, conditional release and compulsorypost-release supervision arrangements should be reserved for those serving 2 years or more. Those serving shorter sentences should be released under licence condtions and directed to support services.

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