A Safer Scotland: Tackling Crime and its Causes

Section 3: Dealing effectively with offenders

The previous sections have set out much of what the Government are doing to prevent crime and safeguard the public. Whatever action is taken, however, there will always be those who will offend. It is vital, therefore, that Scotland has in place the systems and processes to deal swiftly, fairly and effectively with those offenders. The Government believe in the need for consistency and honesty in sentencing as well as tough penalties for serious repeat offenders while allowing for reasonable judicial discretion. We also made a commitment to consult on new racial offences. This section describes developments in sentencing practice, how non-custodial sentences can contribute to finding effective remedies for crime, what has been done to address racist crime, and gives examples of new approaches. The role of prisons is looked at as they have a crucial part to play in addressing, and changing, offending behaviour.

Serious offenders

Crimes of sex and of violence have not diminished in recent years.

Public concern understandably focuses on such serious offenders, especially those who may present a continuing danger to public safety on release. To address public concern the Government introduced extended sentences for sexual and violent offenders in the Crime and Disorder Act 1998. This new sentence greatly increases the power of the courts in dealing with sex and violent offenders. A court can now add a period of extended post-release supervision to the sentence it would normally impose on a person convicted of a sexual or violent offence where it considers that the sentence it would impose would not provide a period of supervision of sufficient length to protect the public from serious harm from the offender.

The number of recorded crimes of violence rose by 75% between 1981 and 1991 and has remained at an unacceptably high level since then. The number of recorded crimes of sexual assault fluctuated in the 1980s, but has increased by over 35% since 1991.

2. For sex offenders, the extension period may be up to a maximum of ten years and added to a determinate custodial sentence of any length. For violent offenders the extension period is up to five years and may be added to a determinate custodial sentence of four years or more.

We have established a committee, chaired by a High Court Judge, Lord MacLean, to examine present experience in Scotland and elsewhere, and make proposals for the sentencing disposals for, and the future management and treatment of, serious sexual and violent offenders, including those who suffer from personality disorders who may present a continuing danger to the public. The committee's work will be complementary to the wider review of the Mental Health (Scotland) Act 1984, which is being undertaken by a committee under the chairmanship of the Rt Hon Bruce Millan, and to the work of the Expert Panel on Sex Offending chaired by Lady Cosgrove.

3. However the current framework of sentencing and treatment for dangerous offenders, many of whom suffer from personality disorders, requires a thorough and independent review. That is why we have recently announced the establishment of a committee to make a thorough examination of the sentencing and treatment of serious sexual and violent offenders, including personality disordered offenders. This committee, which will be chaired by Lord MacLean, will be expected to take account of experience in other jurisdictions to see what lessons may be learnt. It will also be able to take account of the work by Lady Cosgrove's Expert Panel on Sex Offending. It is intended that this review, and a complementary review of the Mental Health (Scotland) Act 1984 will report to the Scottish Executive next year.

Sentencing

4. The Government attaches importance to judicial discretion in sentencing. The court which hears the evidence and sees the accused is best placed to decide on the sentence and it must retain a wide margin of discretion. Consistency in sentencing is not to be equated with uniformity in sentencing. Some of the public concern about sentencing arises from incomplete press reports of individual cases, which often have exceptional features.

The Sentencing Information System.

This flexible, efficient and simple to use system is being developed by Strathclyde University in co-operation with the Lord Justice Clerk and Scottish Courts Administration. It uses information technology to allow judges, before sentencing, to check whether any cases with similar characteristics have come before the High Court in the last 6 years and if so what sentences have been passed by their predecessors. Twelve judges are using the system on a pilot basis and other judges will be provided with the software before the end of the financial year. The merit of such a system is that it promotes consistency in sentencing without placing any formal restrictions on the exercise of judicial discretion. Scotland is one of the few jurisdictions in the world to have made substantial progress with a Sentencing Information System.

5. A number of developments in sentencing practice have recently taken place: In March 1998 The Scottish Office published Costs, Sentencing Profiles and the Scottish Criminal Justice System 1996. This booklet, the second in a series, provided information on the costs of the criminal justice system, including the costs of various disposals. It also provided profiles of sentencing practice in the district and sheriff courts. These profiles are intended to make sentencing information more widely available to assist in improving clarity and consistency in sentencing practice. The right of appeal by the prosecution, which was first introduced in 1993, represents together with the long-standing right of appeal by the convicted person, an important safeguard against clearly inconsistent sentences. The decisions of the Appeal Court provide guidance to the courts in a general way and the Appeal Court was given a specific power to pass guideline judgements by the Criminal Justice (Scotland) Act 1995.

Further work remains to be done, and one area in particular which is being looked at is the use of imprisonment within the sentencing framework. This is an issue that is being taken forward through the Criminal Justice Forum.

Prison programmes

6. Prison is designed for the containment of serious offenders but it should not be an entirely negative experience. It provides an opportunity to involve prisoners in constructive regimes which can help turn them away from offending. Ministers have set the Scottish Prison Service tough targets for completing rehabilitative programmes. In 1997-98, against targets of 450 and 70 prisoners completing the cognitive skills programme (improved understanding of behaviour that leads to offending) and sex offender programme respectively, 635 and 91 completed them. For 1998-99, targets of 600 and 60 prisoners have been set. (The number of prisoners targeted for sex offender programmes has reduced as large numbers of sex offenders currently held in establishments have already completed the programme). Progress is being maintained.

Addressing offending behaviour

The SPS has developed 4 'preferred programmes' aimed at tackling the underlying causes of prisoners' offending behaviour. These include: The cognitive skills programme, aimed at improving the necessary thinking skills to enable offenders to think wisely before they act. A drugs relapse prevention programme to help those who have kicked their habit to stay drug-free over the long term, including after release from prison. The sex offender programme, helping sex offenders understand and come to terms with the hurt which they inflict on others, deal with some of the underlying reasons for offending, and put in place strategies to prevent future offending. The anger management programme, which seeks to break the spiral of frustration which can so often lead to violent outbursts. Work is under way to commission a fifth programme, 'Addressing Offending Behaviour', which is due to begin by March 1999.

Employment opportunities for ex-prisoners

7. It has long been recognised that access to employment presents the greatest opportunity for ex-offenders to stay out of trouble after release from prison. The Government have also recognised that ex-offenders are among the many people who are prevented from accessing employment due to their lack of the necessary literacy, numeracy and job-seeking skills. The New Deal initiative, as part of the Welfare to Work programme, is designed to assist such people. Ex-offenders are given early access to the programme and a pilot is currently underway at Barlinnie to help young offenders in accessing the New Deal on release from prison. This started in June 1998 and provides a period of intensive training for 21-24 year old prisoners in the period before release, after which they can join the Gateway programme leading to New Deal.

The Scottish Office, Employment Service, Benefits Agency, COSLA, Scottish Enterprise and the APEX Trust are exploring the possibility of setting up an Offender Employment Forum for Scotland. Such a Forum would bring together the groups involved with supervising offenders during community or prison-based sentences and the training and employment agencies to integrate the support available to offenders to become economically active and reduce future offending.

Confiscation and forfeiture

8. The courts already have wide powers to order the confiscation of assets representing the proceeds of serious crime; and the forfeiture of property used in the commission of crime. Since the Proceeds of Crime (Scotland) Act came into force on 1 April 1996, Scottish courts have made 32 confiscation orders on convicted drug traffickers and other serious offenders to a total value of £1.4 million. As well as encouraging the police and the courts to make full use of their existing powers, consideration is now being given to whether these powers need to be strengthened even further.

9. The Government are determined that everything possible should be done to ensure that criminals and their families do not profit from the misery which their crimes inflict on others, and will not hesitate to bring forward further legislation if that should prove necessary.

New Race Offences

10. The Government recognise that racist crime does not simply injure the victim or his property, it affects the wider community. Trust and understanding built up over many years between communities can be eroded by the climate of fear and anxiety which can surround a racist incident.

The Scottish Office undertook a wide consultation exercise on race crime in the summer of 1997. The resultant legislation - in the Crime and Disorder Act 1998 - took into account reactions to the consultation. In particular many respondents recognised the value of leaving the established common law to cope with crimes at the most serious end of the spectrum. The High Court may impose sentences up to life imprisonment for common law crimes. However, the majority of respondents took the view that there would be advantage in introducing a new offence of racial harassment, which would fit the facts of certain racist behaviour better than the crime of 'breach of the peace', and ensure that it was readily recognised and dealt with. They also supported the introduction of a requirement for courts to take into account any proven racial element when sentencing.

The Government will not tolerate intimidation of Scotland's ethnic minorities and have introduced a new offence of racial harassment and a requirement on the courts to take racial aggravation into account in sentencing.

12. Consequently, the 1998 Act introduced two important new measures: First, a new offence of racially aggravated harassment. The maximum sentence for this offence is sixmonths' imprisonment on summary conviction or seven years on conviction on indictment. Second, a requirement for courts to take account of any established racial motivation in any offence as an aggravation when determining the appropriate sentence. This strengthens considerably the previous position whereby courts had the power to take racial aggravation into account, by placing on them a statutory requirement to do so.

These measures make clear to all involved - the victim, the offender, the police and the courts - that racial harassment is not only completely unacceptable in Scotland today but will be dealt with accordingly by all parts of the criminal justice system.

13. As an important follow-up to this legislation The Scottish Office will be commissioning research into racially-motivated offences as part of the Crime and Criminal Justice Research Programme 1998-2001. This research is likely to consider the effect of the new Crime and Disorder Act provisions; provide baseline statistics about prevalence and incidence of racially motivated crime; and provide more qualitative research through interviews, focus groups and observation.

Community penalties

14. Community based sentences have a significant role to play within the criminal justice system. For those offenders convicted of serious or violent crimes or multiple repeat offending a custodial sentence may be the only option. However, the Government believe the use of non-custodial community penalties, such as community service and probation, and associated specialised programmes designed to address offending behaviour provides a credible alternative to imprisonment in which both the judiciary and the public can have confidence.

The Government has issued the consultation paper Community Sentencing _ The Tough Option to seek views on an approach which will allow formal validation of quality and consistency of programmes to be developed, through initiatives such as accreditation programmes.

15. The Government have already taken action to broaden the range and effectiveness of options for dealing with offenders in the community: Funding has been provided which allows for provision of Supervised Attendance Orders (SAOs) for fine defaulters at every sheriff and district court in Scotland and diversion from prosecution schemes are being piloted in 18 local authority areas. SAOs are 'fines on time' and designed to avoid imprisonment for fine defaulters. Evaluation of the pilot diversion schemes is now underway. Restriction of Liberty Orders have been available under pilot projects in Aberdeen, Peterhead and Hamilton sheriff courts since August 1998. Offenders can be sentenced by the court to be restricted to a specific place for a maximum of 12 hours per day up to a maximum of 12 months, and/or from a specified place or places for up to 12 months. Electronic monitoring (tagging) is used to check that the offender is complying with the terms of the sentence. Private contractors undertake electronic monitoring of offenders. The main objective of the pilot schemes is to assess the usefulness of Restriction of Liberty Orders, in terms of the extent to which courts use and are satisfied with them, who they use them for and what other sentence they would have imposed on the offender in the absence of a Restriction of Liberty Order; and to assess their costs. The pilot projects will run until March 2000 and are being fully evaluated. The Crime and Disorder Act 1998 made provision for the introduction of a new non-custodial disposal, the Drug Treatment and Testing Order (DTTO), as a constructive alternative to the penalties already available. Its aim is to allow courts to deal more effectively with drug misusers, who commit crimes in order to fund their drug habit. It gives courts powers to impose drug treatment with the consent of the offender, and to specify some of the terms of the treatment, though not its content, and review the offender's progress with the order. Random but regular drug testing will be an integral part of the treatment. The order is available for drug-using offenders aged 16 or over who are assessed as suitable candidates for treatment. The order will last between six months and three years and will provide for the offender to be supervised. The Government announced in December 1998 the choice of Glasgow as the pilot area for this demanding and innovative new non-custodial disposal, with the first orders expected to be made in Spring 1999. An experiment is being conducted with the extension of driving disqualification to all offences, not only motoring offences. The new disposal may also be used instead of a custodial sentence for fine default. This new penalty is currently being piloted in Paisley and Perth Sheriff Courts. The pilot will allow careful monitoring of the new powers prior to deciding whether to introduce them nationally.

As part of the national Invest to Save Initiative we will launch a combined employment/intensive probation project as an alternative to a prison sentence. It will be based in Glasgow and will bring together a package of services which address the offence and employment-related needs of offenders. This approach acknowledges research findings that a multi-dimensional approach is more likely to reduce offending; the project will be funded by the Government and delivered by a partnership of the voluntary and local authority sectors.

To take forward our aim of providing a full range of effective community-based sentences, we are launching an inter-agency initiative, 'Getting Best Results', to co-ordinate all work on quality issues in this area. A steering group has been established to take this forward and its membership is drawn from COSLA, the voluntary sector, the research community, the Scottish Prison Service and The Scottish Office. The work of the group will include the development of agreed criteria of effectiveness for all forms of supervision of offenders in the community and a system to accredit specialised offender programmes.

As a mark of the priority the Government attaches to the greater use of community-based disposals a further £21.4million has been pledged under the Comprehensive Spending Review over the next 3 years to bring the annual budget for delivery of criminal justice social work services to £44million by 2001-2002. In allocating these resources priority will be given to high quality programmes based on agreed effectiveness criteria and in particular to programmes which address the links between drugs and crime, bail supervision and supervision of sex offenders after they are released from prison.

There is thus an increasingly wide range of community disposals available to courts but there remains a need to make better use of what currently exists. To enable this to happen, community disposals must be shown to be robust, effective and of a consistently high quality. The content of programmes and the manner of their provision must be of the highest standard in terms of what is known to work best and in the rigour of their delivery.

Risk Assessment

A framework for risk assessment has been developed to assist criminal justice social workers help to make informed judgements about the levels of risk individual offenders may pose. The framework is being used to provide risk assessments to courts, to assist in deciding how best to deal with an offender, and to help manage the supervision of offenders in the community. The framework is currently being piloted in 16 local authorities throughout Scotland. In addition, a training manual on the assessment and management of risk has been issued to all authorities to help in their day-to-day practice with offenders.

Supported Accommodation

16. A range of supported accommodation for offenders is provided by local authorities and voluntary agencies under the 100% funding arrangements to serve the differing needs of offenders under supervision in the community and ex-prisoners following release. The Government's long term objective is that no-one should receive a custodial sentence or be remanded in custody for want of appropriate community-based accommodation. Achievement of this objective will be subject to the availability of resources but a significant milestone occurred on 1 December 1998 with the opening of a new 24 hours staffed hostel in Dundee to cater for offenders identified as posing a risk to themselves or the public.

New Dundee Hostel

The new hostel, opened in December 1998, will provide a total of 16 beds of which 4 are specifically designated for women, including one for women subject to a bail order. The hostel admissions policy will address the accommodation needs of offenders from Dundee and the surrounding areas who are subject to a residential condition in a probation order, parole licence or bail order. The provision of 24 hours staff cover is designed to ensure a structured and supportive environment which achieves greater public protection and allows offending behaviour to be addressed.

Children

17. In Scotland, children under 16 involved in offending behaviour come within the remit of the Children's Hearings system which, following the Kilbrandon Report (1964), replaced the juvenile court system in 1971. The system deals with all children at risk, whether that risk arises from abuse, truancy or offending. The guiding philosophy is to concentrate on the welfare of the child. In only a very small number of serious cases are children referred to the criminal courts.

18. Where anyone (whether parent, relative, neighbour, social work department or police) is concerned that a child may be in need of compulsory measures of protection, guidance, treatment or control, he or she may refer the case to the Reporter. The Reporter will decide what action, if any, to take and may call for reports from agencies e.g. social work, police or education departments. If the Reporter is satisfied that the child may be in need of a compulsory measure of supervision, he will arrange a hearing, setting out the grounds of referral. The parents must attend the hearing. Where the grounds are accepted, or are subsequently established by a sheriff court, the hearing will focus on the needs and welfare of the child.

19. Where offending is involved, a hearing will seek to ascertain what lies behind the behaviour and address it through its disposals. The disposals are now more systematic following introduction of the Children (Scotland) Act 1995, but measures must be developed to address those whose offending behaviour has settled into a pattern of regular offending. These are difficult children who require special attention. Responsibility for providing care plans lies with local authorities. The Government expect local authorities to develop local initiatives and programmes to be included in recommendations to Children's Hearings and to allocate appropriate resources for implementing supervision requirements. The care plans in respect of looked-after children are the statutory responsibility of the local authorities and should include details of the supervision requirement and the timescale for meeting the objectives.

20. Children's Services Plans for each local authority provide an opportunity to focus resources on what is best for each area. There is a need to tailor approaches to the age, maturity and background of the child. Many children have a variety of challenging problems dictating the need for close supervision and support.

21. Programmes are needed which combine elements of mediation, reparation, family conferencing, early intervention, and victim awareness, and which go beyond specific action in respect of the child. The Scottish philosophy is for that to be done in a constructive rather than a punitive manner.

Cue Ten Project (Glenrothes)

This project, run by Apex Scotland and funded by The Scottish Office (£200k per year over 3 years), is designed for young people aged 14-16 who have appeared before a Children's Hearing on grounds of persistent or escalating offending, and for whom existing measures have not proved satisfactory or appropriate. In the first year, 21 young people passed through a 26 week programme which focuses on preparing them for employment - by motivating them to work and by offering them experience of work (with help from local employers). It is being evaluated by Lancaster University to compare its objective of contributing to immediate and long-term reduction in offending behaviour with outcomes.

Persistent Offending Projects

22. Dealing with persistent offenders is a particular challenge for the hearings. Several innovative projects are already in hand to develop ways and means to address persistent offending by young people. With some £1.7m of Government support, the Freagarrach project (run by Barnardos), Cue Ten (run by APEX) and SACRO's mediation projects undertake intensive work with young offenders to address their behaviour and underlying problems. While full evaluation of the outcomes of these projects is still awaited, there are indications that intensive approaches can make a positive contribution towards preventing future offending.

Freagarrach Project (Polmont and Alloa)

This project run by Barnardos and funded by The Scottish Office (£1m over 5 years), targets offenders between the ages of 12-16 years in the Central Area with 10 or more episodes of offending and aims to confront them with the consequences of their actions. The Scottish Office has commissioned Lancaster University to undertake a comprehensive evaluation of the project. Initial evaluation of outcomes suggests that the frequency and severity of offending for all young people attending has been reduced.

23. In its own way, each project has demonstrated the advantages derived from co-ordinated inter-agency working. The evidence is that improved liaison arrangements between the police, social work, education and reporter service can lead to more effective service delivery.