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SCOTLAND'S CRIMINAL JUSTICE PLAN

CHAPTER FOUR: EFFECTIVE INTERVENTIONS AND SENTENCES WHICH FIT THE CRIME

Offenders on Community Scheme at
Scotland Yard Adventure Centre, Edinburgh

4.1 Experts and practitioners agree that early and sensitive interventions with minor offenders are the best strategy in turning people away from a cycle of crime. It is also widely acknowledged that court delays make this more difficult to achieve. In the extended time between the original offence, prosecution and sentence, an offender may have already committed several more offences. That is why our programme of court reform forms the essential backdrop to the plans for more effective interventions and sentences which fit the crime.

Youth justice

4.2 It is especially important to deal promptly and effectively with young people who offend. A criminal career may start with minor offending during the early teens or younger. A risk taking personality, combined with poor or erratic parental discipline, low school achievement and social deprivation can lead a young person to seek adventure, and esteem through criminal behaviour. This is not to excuse crime as a product of personality or social deprivation, but to recognise that these factors often may contribute.

4.3 Scotland has led the world in developing a system which is sensitive to the needs of children vulnerable to criminal influences and in need of care and protection. The Children's Hearings system puts the child at its centre, involves local people in deciding what is the right thing to do and focuses on the care and welfare of the young person.

4.4 The system was set up over 30 years ago and it is being reviewed. The nature of the referrals to the Children's Hearings system has altered significantly over the years. When the Children's Hearings system was first established, offending behaviour constituted the vast majority of referrals. Now nearly two-thirds of referrals are for care and protection issues and more children now face the challenges of living within families with drug and alcohol difficulties. We want to ensure that the Children's Hearings system is right for today's young people and has adequate resources to do the best job possible to protect children. Phase 1 of the review in the spring of this year involved consultation on the principles and objectives of the Children's Hearings system. Responses to this consultation have been analysed and are now published ¹¹.

4.5 At the same time we have introduced measures and programmes and new resources to enable the existing system to work better. These resources have enabled local authorities to set up and expand programmes to prevent and address offending by young people. Much of the focus of our work to implement the Antisocial Behaviour Act also focuses on under 16s.

4.6 If successful, reform of the hearings system, coupled with appropriate programmes, including those to tackle addictions for the under 16s, should succeed in reducing the numbers whose offending eventually takes them before the adult system.

What we have done

• We have established multi-agency Youth Justice teams in every Local Authority area and published national standards for youth justice.
• We have put in place a variety of measures to prevent and divert young people from offending at the earliest stage, such as projects supported through the Youth Crime Prevention and Local Action Funds and police restorative warnings.
• We have provided 3,000 places on restorative justice programmes for young offenders.
• We have initiated a review of the Children's Hearings system.
• We have established fast-track hearing pilots to tackle persistent offending by under 16's and to do so quickly.
• We have put in place resources so that programmes for persistent young offenders have been set up or are in development in every Local Authority.
• We have legislated to extend electronic monitoring to offenders under 16 years of age.

What we will do

• We will begin Phase 2 of the Children's Hearings review early in 2005 to consider options for delivering the system we wish to see. We wish to ensure that the system focuses on positive outcomes for children and that it monitors and evaluates progress. A central issue will be how the system engages with parents and how parental responsibilities are highlighted.

Adult offenders

4.7 But some children will graduate into the adult system. Once there, many offenders reappear again and again in our social work departments, in our courts and in our prisons. But whilst high reconviction rates are a problem we must address, it is important to acknowledge that a significant proportion of offenders do not reappear before the courts. They will desist from crime after a short offending career. Family ties, employment, housing, improved problem solving skills and dealing with any addiction problems play a part in reducing the likelihood that they will reoffend.

4.8 In many cases of minor offending, a decision to prosecute may not be the most appropriate solution. We have long standing arrangements that allow the procurator fiscal to offer an alternative, such as a financial penalty (the 'fiscal fine') or diversion to social work services or mental health care, where the public interest would not be served by prosecution. In building on this tradition and linking it to the McInnes review, we will expand the range of non-court alternatives.

4.9 It is important that criminal justice services build on the positive forces that exist in an offender's life, promoting rather than undermining the factors that help to deter further offending. Sentences must embody fair punishment. Punishment in the form of community sentences is more conducive to rehabilitation and sustaining positive links.

4.10 The use of community sentences has risen over the last 10 years. The prison population has also continued to increase. No person should end up in custody because of the lack of an appropriate community sentence.

4.11 We recognise that the appropriate use of community disposals, with time and space to undertake programmes and reinforce lessons within the community, can be more effective in addressing offending than sending the offender to custody where little or nothing can be done. Indeed, short periods of custody may disrupt the offender's life and increase the factors which can lead the offender to reoffend. We will ensure that we continue to have a broad range of community sentences. The challenge is to secure public confidence that punishment in the community is robust and will protect them from further offending.

4.12 In crimes of violence the victim may be entitled to an award of compensation from the Criminal Injuries Compensation Authority (CICA). In some cases it may subsequently come to light, for example, that the offender has resources which could have been used to compensate the victim directly. In such cases we believe it is right that the resources of the offender rather than the taxpayer should be used to compensate the victim, thus making the offender directly aware of the consequences of his crime for the victim. The proposed power will therefore enable the CICA to recover from the offender sums the Authority has paid to the victim.

What we have done

• We have extended the range of community disposals available to courts and invested significant additional resources in criminal justice social work services from 44m in 2000-01 to 88m in 2005-06.
• We have set up 218 (Time Out) Centres in Glasgow to develop a new approach to working with women who offend.
• We have helped fund arrest referral schemes in six areas of the country. Arrest referral provides the individual with an opportunity, at the point of arrest, to take up the offer of treatment or counselling.
• We have piloted the youth court to fast track offenders into court and to roll up outstanding charges so that the offender can make a fresh start on an intensive programme following sentence.

• We rolled out Restriction of Liberty Orders (RLOs) across Scotland in May 2002. RLOs provide a direct alternative to custody and come at the high end of the tariff spectrum. Compliance with the terms of the order is by means of electronic monitoring.
• We have promoted the further use of electronic monitoring of offenders as a condition of a probation order or as a condition of a DTTO. This extends the flexibility of both, by giving the courts the option of combining them whilst placing restrictions on the offender's movements.
• We have established an independent Community Programme Accreditation Panel to assimilate and encourage best practice and the adoption of more effective community based interventions by accrediting programmes based on the evidence of what works in reducing reoffending.

What we are doing

• Courts in Inverness, Dundee and Greenock will shortly pilot a new sentencing option in the shape of Community Reparation Orders. These are designed to deal with relatively low level acts of antisocial behaviour by benefiting communities from the reparative work carried out by offenders as part of the order. Offenders will undertake between 10 and 100 hours of unpaid reparative work and community organisations will have a statutory right to be consulted on the nature of the work offenders do within their areas.
• We will legislate to provide powers for the CICA to recover sums paid by the CICA to victims of crime from the perpetrators.
• We will further encourage use of Supervised Attendance Orders (SAOs) as an alternative to imprisonment for the non payment of fines, requiring offenders to undertake a programme of specified activities lasting between 10 and 100 hours. These orders are well regarded by courts and have been evaluated as having a positive impact on reducing reoffending. Short prison sentences for fine defaulters serve very little useful purpose and come at a substantial cost to the system. In seeking to encourage their greater use, we are piloting two new uses:
  • In Ayr Sheriff and Glasgow District Courts, we are replacing the option of short custodial sentences for offenders defaulting on a fine (up to a certain level) and the courts are now required to use SAOs in dealing with fine defaulters. We will test if these 2 year pilots can cut the numbers received into custody for fine default, particularly female offenders; and
  • We have legislated to introduce SAOs as disposals of first instance rather than a fine where there is no realistic prospect of an individual being able to pay a monetary penalty. We are about to pilot them in certain courts. In such cases, SAOs may offer a more effective response.

Smarter use of Prisons

4.13 Custody has its place. But some offenders will serve what is effectively a long sentence in short instalments for relatively minor offences. For the future, effective, early intervention has a key role to play to stop this kind of offending career in its tracks. Scottish Prison Service's (SPS) core plus' programme meets the basic needs of all prisoners and provides a wider range of services to those presenting greater risk or serving longer sentences but the shorter the sentence, the less that can realistically be achieved. There is simply not enough time to carry out effective interventions.

4.14 The prison population has reached an all time high and many prisons are overcrowded. The significant rise in the remand population in 2002 (a level maintained in 2003) has fuelled some of the increase in the prison population and has exacerbated the problem of churn in the system. The current overcrowded state in many of our prisons results in added pressure on the system, creating extra work for staff and reducing their ability to spend time on tackling offending behaviour, supporting inclusion services and focusing on reducing reoffending.

4.15 Given the growing concern about the use of short term sentences for petty and repeat offenders, we will take a more imaginative approach to addressing the problem of short prison sentences, by combining community and custodial sentences. An approach, successfully used in other countries, such as Finland, is the suspended custodial sentence.

What we will do

• We have legislated to introduce electronic monitoring as a condition of bail to provide the courts with another option in place of custodial remand. Pilots will commence in spring 2005.
• We will pilot structured deferred sentences. These are designed to provide a relatively short period of focused supervision. Our aim is to offer the courts an option which deals with offenders early before the pattern of offending behaviour becomes established.
• We will consult on options for suspended sentences next year.

Improving prisons

4.16 None of these plans deny the place of custody. We believe in appropriate sentencing and that means long sentences for those who, for whatever reason, have committed callous crimes for gain or gratification and regardless of the consequences for others. For such cases, a rigorous system of risk assessment and management will also be appropriate before release is considered and for this reason we have set up the Risk Management Authority and we maintain the Parole Board for Scotland.

4.17 However, our prisons are overcrowded. Too many prisoners mean poor prison conditions, greater expense to the tax payer and fewer opportunities to address a prisoner's offending behaviour. We need to invest in our prison estate now to deal with the acute problems we currently face.

What we have done

• We have improved prison conditions by:
  • Completing the refurbishment of HMP Barlinnie and thus ending the practice of 'slopping out' in that establishment; and
  • Building two 'fit for purpose' halls at HMP Edinburgh and HMYOI Polmont.

What we will do

• We will improve prison conditions by:
  • Accelerating the redevelopment of four existing prisons, at Edinburgh, Glenochil and Perth and the Young Offenders' Institution at Polmont;
  • Building two new 700-place prisons, at Addiewell and on the site of the existing prison at Low Moss. Planning permission has already been given for the first of these; and
  • Creating 140 new quick-build places in the Open Estate at Castle Huntly and 100 more at Cornton Vale to relieve pressures elsewhere in the estate.

4.18 The result will be 7 new or completely rebuilt prisons in the decade from 1999, compared to two in the 30 years up to 1999. Investment in these projects is currently running at 1.5m a week.

• We will relieve overcrowding through schemes which will allow offenders to serve a greater proportion of their sentence in the community where there is negligible risk to public safety.
  • SPS is currently examining how the current home leave scheme could be extended in future to facilitate a greater occupancy rate in the Open prison estate.

4.19 Prison is an expensive option. We should make the best use of it, as a component in an integrated system rather than something that stands alone and apart. Reconviction rates of ex-prisoners, particularly for males under 21, are higher than for those subject to probation, given another type of community sentence or fined. The highest reconviction rates are for offenders imprisoned for short periods (sentences of less than 6 months and so with 3 months or less actually served in prison). For the 1998 cohort of males under 21 discharged from a custodial sentence, 82% of those who had been sentenced to less than 6 months were reconvicted within 2 years. This is why the transition between prison and the community is so important.

Resettlement

4.20 We must do more to break down the barriers between what happens in prison and what happens in the community. The new throughcare strategy has begun to address this problem of transition but we can do more to provide better support and more supervision in the community for short-term prisoners once they are released. An abrupt change from custody to freedom can lead to a return to old ways which undoes any progress made in prison. To aid reintegration, and thereby reduce reoffending, we propose to introduce a Home Detention Curfew scheme for prisoners serving over 3 months. This will allow selected low-risk prisoners to spend the last part of their sentence in the community, but subject to a curfew requirement and other conditions tailored to their circumstances. The curfew will be monitored using electronic tagging.

4.21 To ensure public safety, decisions on release will be the result of rigorous risk assessment involving staff in prison and the community, and some categories of offender will be excluded altogether. Failure to comply with the conditions will result in a swift return to custody. Home Detention Curfew will be a demanding option, requiring commitment and self-discipline on the part of the offender if he or she is to complete it successfully. Our initial estimate is that Home Detention Curfew could reduce the prison population by around 250-350, which would have a significant impact on overcrowding and allow more constructive work with those that remain in custody.

4.22 Similar schemes have been operating in England and Wales since 1999 and in a number of other countries. We believe that the introduction of Home Detention Curfew in Scotland would assist both in reintegrating offenders back into society, and relieving pressure on our overcrowded prisons.

• We will legislate to provide for Home Detention Curfew.

4.23 We are accustomed to thinking of prison sentences as a single block of time in custody - an offender will go into prison, will serve the sentence and then be released. But some other countries have experimented with a more flexible use of custody as part of a sentence, for example combining weekend or weekday imprisonment with supervision in the community. In cases where no community sentence (only custody) will do, this sort of intermittent custody could have attractions in providing a very clear punishment through imprisonment but still allow family links and employment to be maintained, avoiding the drawbacks of conventional prison sentences. It requires good integration of prison and community services if it is to work effectively. Pilots of intermittent custody began in England in January 2004.

• We will look at experience in England and in other parts of the world to see whether intermittent custody should be introduced in Scotland.

Improving consistency and effectiveness in the adult sentencing system

4.24 Effective interventions must sit within an effective sentencing framework. We have therefore set up the Sentencing Commission for Scotland as an independent, judicially-led body with the remit to review and make recommendations to Scottish Ministers on:

• the use of bail and remand;
• the basis on which fines are determined;
• the effectiveness of sentences in reducing reoffending;
• the scope to improve consistency of sentencing; and
• the arrangements for early release from prison and supervision of short term prisoners on their release.

4.25 The Commission's current priorities are bail and remand and early release.

4.26 It is important to balance the need for fairness to an unconvicted accused and the importance of protecting the public from harm and ensuring that the process of justice is not disrupted by (for example) repeated failures to appear. Remand in custody can be counterproductive for those who will eventually be acquitted or receive a non-custodial sentence. That is why we have asked the Commission, which has a broad range of expertise, to look at the operation of bail and remand and also to examine the consistency with which these decisions are made, as recent research has highlighted a lack of consistency in the way these decisions are made, and the Sentencing Commission has been asked to examine this in more detail.

4.27 What we said in our consultation on reducing reoffending sets the tone for the Commission's work on early release. It should be about how best to ensure that custodial sentences focus on rehabilitation and therefore the reduction of offending. It is not clear that the present system achieves this, given the lack of post-release supervision for those released from sentences of less than 4 years. There are two sets of issues. The first around the added value of the discretionary element in the timing of release for those serving over 4 years. The second is around the usefulness of short sentences, say less than 3 months actually spent in custody (equivalent to a six month sentence) in achieving any rehabilitation whatever. We want the Commission to consider the proper targeting of such short sentences and whether there are other more effective options they would wish to recommend.

4.28 We are also concerned that any new system should be easy for the public to understand, and should be seen to be fair and to be aimed at protecting the public from unnecessary risk from released offenders - but without containing drivers to increase still further pressure on the prison population.

4.29 The review will not necessarily result in recommendations for change to every part of the system - that is a matter for the Commission to determine. Some changes may be necessary to ensure consistency in the application of the law, and to ensure that there are no unacceptable anomalies between the treatment of indeterminate and determinate sentences, and of different lengths of determinate sentence.

4.30 The Parole Board for Scotland has a long track record in the area of discretionary release of prisoners. It currently has powers to direct release on licence, recall of those who breach licence conditions and their re-release on licence as well as release and recall of sentenced children. Its key role is to consider public safety. The Parole Board does a good job with a heavy workload. The Parole Board needs to work independently - but we have to make sure that the right checks and balances are in place when it comes to risk assessment. We therefore want to look at whether there should be scope to scrutinise, and if needs be, challenge the Board's decisions where they affect public protection. The review of early release has an impact on the functions of the Parole Board; as will the introduction of the Risk Management Authority. A coherent approach will be taken to all these issues in the Sentencing Commission's work.

• The Sentencing Commission will provide recommendations on these subjects between now and March 2007.

Conclusions

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