General approach
4.1 Sentencing policy, legislation and practice should be designed to reflect the aims of sentencing. There are of course several such aims, including retribution, deterrence, restitution to the victim and society, rehabilitation and incapacitation. It is because these aims are so diverse, as of course are offenders and the crimes they commit, that sentencers have traditionally enjoyed a wide discretion in Scotland, within the boundaries set by statute and any guidance given by the High Court in decisions on appeal.
4.2 In the case of serious violent and sexual offenders, it is right that a sentence should be sufficiently severe to constitute appropriate punishment for the offence which has been committed. However, we believe that it is also right that reducing the risk of future harm to society is a legitimate sentencing aim. This can be achieved both by increasing control over offenders, whether in prison or in the community, and by seeking to modify their behaviour.
4.3 It is our general belief, then, that in addition to imposing sentences for punishment reasons, it is appropriate to sentence serious violent and sexual offenders differentially, in order to reflect the risk they present. But this approach can be fair only to the extent that the way in which we evaluate levels of risk can be shown to be reasonably reliable. Furthermore, the imposition on individuals of additional sanctions on top of proportional punishment, because it is felt that they present additional risk, should carry with it the expectation that society will take some measures to help an offender to reduce that risk. Indeed, it would be a poor use of resources if the costs of incarcerating and supervising such offenders were incurred without any attempt to address the behaviour that led to their sentences.
4.4 Nevertheless, our approach must be tempered with realism and the knowledge that the 'treatment effect' of most interventions is modest. Some offenders will not improve. Since it is impossible to predict the outcome of treatment in advance, the principles of rehabilitation should mainly inform the way a sentence is served, rather than the overall length of the sentence. Different issues apply to those who are acutely mentally ill at the time of the commission of a criminal act, both because their culpability may be less or even non-existent, and because in many cases effective medical treatment can greatly reduce the future risk.
4.5 In terms of sentence management, it is our guiding principle that a sentence must be viewed as a whole. Too often, time spent in prison has been regarded as the 'real sentence', with time on parole or licence being viewed as a separate entity with different aims. For the group of offenders with which we are concerned, it is crucial that the whole length of a sentence is used in an integrated way to manage and reduce risk. Our recommendations are designed to 'blur the boundaries' between prison and the community. We also wish to ensure that throughout a sentence there is active quasi-judicial oversight to ensure fairness to the offender and appropriate protection for society.
Sentencing offenders who commit serious violent or sexual crimes
4.6 In our consultation paper, we outlined the options currently available to sentencers, and these are set out again in Annex 7. So far as those not suffering from mental disorder are concerned, the majority of serious violent and sexual offenders receive a determinate sentence. Most of those receiving sentences of four years or more will be released after serving between one half and two thirds of their sentence in prison. A very few will receive an extended sentence which allows for a further period on licence after release, which period can, in the case of a sex offender, be for up to ten years. A few will receive a discretionary life sentence. Those convicted of murder will receive mandatory life sentences. We deal with those suffering from a mental disorder in Chapter 7.
4.7 There are two fundamental concerns when dealing with offenders who present a high and enduring risk. The first is that with determinate sentencing, including the imposition of an extended sentence, both the period in prison and the period under any form of supervision must come to an end at a specified date, regardless of the extent to which the offender presents a continuing risk. Second, although there is flexibility in fixing at the date of its imposition the overall length of the sentence, up to and including life imprisonment, the procedures for deciding what sentence to impose or whether to release an offender may not be sufficiently discriminating to use the discretion effectively.
4.8 As we have said, sentencers in Scotland have traditionally enjoyed a large measure of discretion. Except in cases of murder, mandatory sentences are almost unknown. Many of the relevant offences are non-statutory, allowing the sentencer, at least in the High Court, to impose any sentence from a non-custodial disposal to discretionary life. This has many advantages, but one possible disadvantage is that guidance which might assist a sentencer in selecting an appropriate sentence is relatively unsystematic.
4.9 Although the High Court has power under sections 118(7) and 189(7) of the Criminal Procedure (Scotland) Act 1995 to pronounce sentencing guidelines to which, in terms of section 197, a sentencer must have regard in passing sentence, the Court has not so far seen fit to do so. But it has, in the course of several cases, given some guidance as to the appropriateness of discretionary life sentences. The current position appears to be that such a sentence will only be appropriate in the case of a grave offence and where there are expert reports indicating that the offender represents a significant danger to the public at large, or to one particular group thereof, such as women or children.
4.10 Our Committee was interested to discover what factors influenced a judge in deciding whether to impose a discretionary life sentence, as opposed to a determinate sentence. We commissioned research studying all adult discretionary life sentences between 1994 and 1998, and comparing them with a representative sample of comparable offences for which determinate sentences were imposed. The results are set out in Annex 2. It can be seen that all the discretionary life sentences were for offences falling within our terms of reference. It also appears that the main justification for imposing a discretionary life sentence was the level of continuing risk presented by the offender. Interestingly, given our terms of reference, the category 'personality disordered' does not appear in the research as a determining factor. It also appears from the research that the offences committed by and the antecedents of the control group of offenders receiving long determinate sentences are strikingly similar to the discretionary life group.
4.11 Although any results taken from this limited piece of research must be tentative, we think three conclusions can be drawn, namely:
The way forward
4.12 In our consultation paper we commented that:
'...the Scottish system would seem to have the flexibility to impose lengthy and, indeed, indeterminate prison sentences, where these are warranted by the circumstances. However, it can be difficult to assess dangerousness at the time of sentencing, and the Committee is interested to consider whether the current procedures for considering release on licence, and post release supervision, are adequate'.
4.13 Having considered evidence as to the operation of systems both in Scotland and elsewhere, we remain of the view that the basis of the Scottish system is sound, but that more needs to be done to make the assessment of risk an overt and transparent part of that system. In other respects, our views have developed. In particular, we now believe that more emphasis should be placed on the management of the whole sentence, rather than on maintaining the sharp division between time spent in prison and time in the community. In arriving at these conclusions, we considered a range of possible new sentencing options.
Option one: mandatory life imprisonment for crimes other than murder
4.14 Currently, mandatory life sentences are imposed only in cases of murder. While Section 1 of the Crime and Punishment (Scotland) Act 1997 also provides for an automatic life sentence in certain situations, essentially where a person is convicted of two or more serious offences, that section has not been brought into force. As enacted, it provides for a wide element of judicial discretion as to whether a life sentence should be imposed in particular cases, arguably leaving the sentence positioned uneasily somewhere between mandatory and discretionary life.
4.15 Almost no support was received in our consultation for an extension to the circumstances in which mandatory life sentences should be applied. It was suggested as a possible option by the Association of Chief Police Officers in Scotland (ACPOS) but without being particularly favoured; and one local authority suggested it might be considered, but only if release and recall decisions were not the responsibility of Ministers.
4.16 A case can be made for saying that to require judges to impose mandatory life sentences for repeat serious offenders will enhance public safety. This is based both on the assumed deterrent effect of such a sentence and the fact that people who have shown themselves to be a danger to the public on repeated occasions can reasonably be assumed to present a continuing danger in future.
4.17 We received no evidence directly bearing on the issue of deterrence, but we are sceptical that the current legal status of a provision such as Section 1 of the 1997 Act plays a significant part in the calculations of the kind of offender with whom we are concerned. Given that we are considering serious offenders who, whatever the statutory provisions, will be likely to spend long periods in custody if convicted, it seems reasonable to suppose that the greatest impact on deterrence is likely to be by improving the prospects of catching the offender and obtaining a conviction in the first place.
4.18 As to the argument that incapacitation will increase public safety, it is clearly the case that incarcerating for longer periods people who have committed serious offences and making them subject to lifelong recall may prevent some of them committing further crimes. The question is whether, if public safety is the goal, the mechanistic approach of imposing life imprisonment on some offenders solely on the basis of the particular offences of which they have been convicted is the best way to achieve this. In our view, it is not.
4.19 For one thing, such an approach will fail to catch some people who do present a high risk but whose offences do not fit the statutory criteria. If adopted on its own, then, such an approach would fail to meet its primary aim of protecting the public against those serious offenders who present a continuing risk.
4.20 On the other hand, such an approach will bring into the scope of the legislation people whose level of risk may be extremely low. This could include people whose offences were many years apart, and in widely differing circumstances; those whose offences were not in fact particularly serious but happened to meet the statutory criteria; and those where there were significant mitigating factors.
4.21 While it is understandable that some sections of the public would be content for such offenders to receive life sentences 'to be on the safe side', in our view this approach has two major flaws. It is potentially unfair to the offender, who may receive a more severe sentence than another offender who has committed a more severe offence or offences, but who does not meet the statutory test. Just as importantly, it is not an efficient way of using the limited resources available to society to deal with crime. It is a waste of money and scarce professional skills to imprison and keep under supervision offenders who do not require that level of custody and control. There is also a danger that dealing with low risk offenders as if they were high risk could lead to carelessness and cynicism in the operation of the system.
4.22 These problems tend to lead to one of two outcomes in relation to mandatory sentences. Either the law is applied rigidly, leading to unfairness and inefficiency, or some means of ameliorating the worst effect of the sentence is found, either by an element of judicial discretion, or by mechanisms to disapply (or circumvent) the provisions in particular cases. One example of this is the plea of diminished responsibility in relation to murder, which plea, if successful, will lead to a conviction for culpable homicide and usually a determinate sentence or mental health disposal. These mechanisms may effectively make the mandatory sentence a discretionary one, or create new anomalies.
4.23 In short, we believe that in non-murder cases the mandatory life sentence is a blunt instrument. It does not address the key aim, which is to control more effectively those who present the highest level of risk. We believe that mandatory life sentences should be confined to cases of murder. We regard section 1 of the 1997 Act as wholly anomalous; for the reasons stated, we see no place for it in the armoury of disposals presently available and no role for it in the scheme which we later propose for the sentencing of high-risk offenders. It should be repealed.
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RECOMMENDATION 10 Section 1 of the Crime and Punishment (Scotland) Act 1997 should be repealed. |
Option two: longer determinate sentences
4.24 We received little evidence that sentence lengths should be increased in order to protect public safety. It is not an approach we favour.
4.25 First, such an approach would be difficult to introduce in the Scottish system, where selecting the length of sentence has traditionally been a matter of judicial discretion. Introducing minimum sentences would be a major change and would be subject to the same objections as those made in relation to an extension of mandatory life: that the sentence is based not on the seriousness of the offence or the risk to the public, but on the name of the offence. In our view, it is simply not possible for a statutory formula adequately to encompass the range of factors to be considered in determining the length of a sentence.
4.26 Nor would such a change do what is needed: first, because an offender would still at some stage reach the end of his/her sentence, and a few would still present a high risk; and second, because huge resources would be tied up in imprisoning those who did not need to be in prison.
4.27 Our experience of the system in parts of the USA, particularly as it deals with sex offenders, was highly instructive. Despite the fact that sentence lengths are typically extremely long (and often mandatory), legislation striking at the sexually violent predator has been introduced in several States. Such laws are used to incarcerate offenders thought to present a high risk, but who have reached the end of their prison term. It may also be significant that, in some cases, offenders appear to have received lower sentences than the seriousness of their crimes would justify, apparently because of plea bargaining to avoid charges attracting a higher sentence.
4.28 It also appears to be the case that, in these States, sentence lengths are continuing to increase for sex offences, with terms of 50 or 60 years, or 'natural life without parole', not uncommon. During that period, little is done to deal with the underlying causes of the offending behaviour, and the increasing numbers of prisoners contributes to a harsh and under-resourced system.
4.29 Another possibility, which we do not favour, is to increase the time spent in custody during a sentence, and reduce the length of time spent on parole or licence. This matter was carefully considered by the Kincraig committee13, and we believe its findings are still generally appropriate. The major objection to reducing time spent on parole is that the offender must be released from supervision at the expiry of the whole sentence, and shortening the time spent under supervision in the community makes it more difficult for community services to engage with the offender and work on managing risk in a community setting.
Option three: more Extended Sentences
4.30 Extended Sentences are still new. They are competent only in cases of crimes committed after 30 September 1998 and were specifically designed to meet, at least to some degree, the problem under consideration by the committee: that some violent and sex offenders continue to present a risk to the public even after they have reached the end of a determinate sentence.
4.31 Our consultation found general support for the option of Extended Sentences, although the Scottish Human Rights Centre expressed the view that a simple determinate sentence is a more appropriate option. A number of respondents, including the Association of Directors of Social Work, the Law Society and SACRO, suggested that Extended Sentences should also be available to offenders charged in summary proceedings. However, many respondents pointed out that because the sentence is so new, and so few such sentences have been imposed, it is too early to assess its impact.
4.32 Although we have not researched the matter, it would not surprise us if the Extended Sentence has been little used so far because there are not in place sufficiently effective mechanisms to assess its appropriateness in a particular case and to make the necessary recommendations to the court.
4.33 We conclude that it is too early to recommend any major changes to the basic nature of the extended sentence. If our recommendations for a new lifelong sentence for the most dangerous offenders are adopted, we believe that the extended sentence will be an important bridge between that new disposal and the normal determinate sentence, in cases where the proposed statutory criteria for the new disposal are not met. We deal with this more fully at paras. 6.17 to 6.18.
4.34 There is one aspect of the law relating to the extended sentence which we believe should be changed. At present, under Section 210A(3) of the Criminal Procedure (Scotland) Act 1995, the extension period for a common law sexual offence cannot exceed ten years, while for a common law violent offence the period is a maximum of five years. We cannot see any justification for such a difference. It has the effect of limiting the discretion of the court in fixing an extension period for a violent offender who may be in need of just as much post-release supervision as someone whose crime was sexual in nature. We note that Scottish Ministers have power, under Section 210A(7) of the 1995 Act, to amend this provision by statutory instrument and we recommend that they do so in order to bring the two provisions into line with each other.
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RECOMMENDATION 11 The maximum competent extension period of an extended sentence should be ten years in the case of both a sexual offence and a violent offence prosecuted at common law. |
Option four: alter the law on supervised release orders
4.35 Supervised release orders require an offender serving a custodial sentence of less than four years to be under the supervision of a designated authority on release from custody, for up to twelve months. They are competent only for an offence other than a sexual offence committed after 30 September 1998. The criterion is that the supervision is required to protect the public from serious harm. SACRO (Safeguarding Communities, Reducing Offending) commented to us that supervised release orders may not have been used as widely as might have been hoped, possibly because of difficulties in assessing future risk at time of sentencing. The Association of Directors of Social Work suggested that the low uptake of supervised release orders suggested that they needed to be altered or extended in scope.
4.36 Other suggestions made to the committee included making such Orders mandatory in all cases of sexual and violent crime, and allowing the term of the Order to extend beyond the date by which the entire term of custody specified in the sentence has elapsed, on the basis of an end-of-custody assessment. It was also pointed out that the conditions attached to supervised release orders are less stringent than those which apply to parole or non-parole licences; for example, the commission of a further offence is not in itself a ground for breach.
4.37 Because supervised release orders are only available to those receiving shorter sentences, most of the offenders for whom they might be imposed are not the high risk offenders with which we are primarily concerned. However, some offences may be part of a pattern of more serious offending and we hope that the recommendations we make about improving the quality of information to sentencers will help to address the concern that sentencers are unable to assess risk at the time of sentencing.
Option five: alter the legislation on sex offenders
4.38 The Sex Offenders Act 1997 provides that offenders convicted of certain sexual crimes must register with the police and imposes on the registered offender a range of legal requirements. The Crime and Disorder Act 1998 makes provision for Chief Constables to apply for a Sex Offender Order in respect of persons over 16 years who are sex offenders and who have acted in such a way as to give reasonable cause to believe that an order under the Section is necessary to protect the public from serious harm. To date, few such orders have been sought.
4.39 While our recommendations for the sentences imposed on, and future management or treatment of, high risk offenders go beyond the provisions of the Sex Offenders Act 1997 and the Crime and Disorder Act 1998, we did give consideration to the adequacy of that legislation. The Committee heard of concerns over:
Our Committee heard that amendments were justified which would give greater powers to the authorities, provide better information and create greater controls over the movement of registered sex offenders.
4.40 Our Committee was also aware of the work of Lady Cosgrove's Expert Panel on Sex Offenders and that the Panel is also pursuing work on the Sex Offenders Act and the Crime and Disorder Act. Members of our Committee and Lady Cosgrove's Panel have met on two occasions and shared common interests. From these meetings it became clear that work on the registration of sex offenders falls squarely within the remit of Lady Cosgrove's Panel and while pertinent to our work, is less central to it. It was agreed therefore that the substantial responsibility for work in this area should lie with the Panel and that any recommendations for legislative change should be advanced by it.
Option six: alter the law on stalking and harassment
4.41 Other orders which can be imposed to control anti-social behaviour in the community include Anti-Social Behaviour Orders and Non-Harassment Orders. The latter, in particular, are intended to deal with 'stalking' and could, in some cases, arise in relation to psychologically disturbed individuals who may present a risk of serious harm. It was not possible for us to consider these orders in detail, but we note that the operation of the stalking and harassment legislation is now the subject of separate consultation by the Scottish Executive Justice Department14. In general, we believe that the recommendations we make regarding a more thorough and systematic process of risk assessment and risk management might be of some relevance, in that such techniques may help to inform the question of when such orders should be sought, and the conditions they should contain.