Early release must be simple and effective

Published on 18/04/2006 00:10

IN THE complex and often confusing world of criminal justice, it has long been argued that there is a greater need for clarity when sentencing offenders. Victims of crime and their families regularly express outrage when offenders are automatically released early from prison after serving as little as half of the sentence imposed.

In response to such understandable public concerns, and to criticisms from criminal lawyers that the current regime - based on the Prisoners and Criminal Proceedings (Scotland) Act 1993 and numerous amendments - has become far too complicated, the Scottish Executive pledged to bring an end to automatic early release in favour of a system which the public and practitioners can understand.

Will the new Sentencing Bill, due to be unveiled later this year, be any better at balancing the need to punish criminals and protect the public with the rights of the offenders and the desire to support rehabilitation and reduce reoffending? Finding such a model has been the latest onerous task undertaken by the Sentencing Commission. Its report on early release of prisoners and supervision on release was published in January; the Executive's response is imminent.

The commission's model recognises the importance of retaining early release, which is the key to protecting the public by enabling supervision of offenders as they adjust to life outside prison, and ensuring the risk to the public is assessed.

Prisoners sentenced to less than four years are automatically released without conditions after serving half their sentence; those sentenced to longer periods are freed on licence after two-thirds of their term, unless the Parole Board recommends an earlier release date.

To replace the current system, the commission's report proposes a new regime, with those prisoners sentenced to terms of more than 12 months serving all of a minimum period - fixed by the court - in prison, followed by a further part of their sentence in the community under supervision.

Offenders sentenced to less than 12 months would be required to serve at least half the term in jail, but could be released early to serve the remainder of their sentence under a Home Detention Curfew, using electronic tagging.

The sentencing judge or sheriff would be required to explain the effect of the sentence so the offender - and public - are left in no doubt as to what minimum time to be served in custody will be. Sheriffs' sentencing powers would be revised so the maximum custodial part of a sentence would be three and a half years, with a the maximum community element of five years.

Summing up the report, commission chairman Lord Macfadyen says: "Our recommendations are designed to put forward a system in which the sentences imposed by the courts will mean what they say." Responding to the consultation, the Law Society's criminal law committee came up with a broadly similar model, but its report argued all prisoners granted early release should be supervised by social-work departments.

Solicitor advocate Bill McVicar, a member of the society's criminal law committee, acknowledges this would inevitably require more resources, but he stresses the importance of supervision in reducing the risk of reoffending: "We took the view there should be room for supervision of all prisoners after their release. Generally speaking, if you are given a sentence, you should be told how long you are going to spend in custody and you should be given the opportunity to be released at the end of that period, provided you fulfil certain criteria and agree to supervision of a particular type.

"The Sentencing Commission takes the view that that sort of supervision should be the norm for sentences of more than 12 months. They are doing that, I think, because there are huge resource implications for the number of people given sentences of less than 12 months.

"I can see it would be difficult to have a full supervision system for all these people. But, ideally, you would have some sort of supervision on release because being in custody must have some effect on everyone."

McVicar says some clients would prefer a longer sentence if it means they could have more support under supervision on release: "There are so many times over the last 20 years that I have dealt with people who have been released without any real supervision, and they have gone on to reoffend because they are completely institutionalised. They are on a treadmill and it is very difficult to get them off it, the way the system works."

He disagrees with the commission proposal that it should be ministers who decide whether offenders can be released to serve the community part of their sentence, or remain in prison should early release not be in the public interest.

"At the moment, the Parole Board make the decision about early release in parole cases, whereas this proposal envisages the decision being made by ministers, subject to appeal to the Parole Board," he says.

"I am not sure that is human-rights compliant. We suggested that there should be a presumption in favour of release at the appropriate point, unless the Parole Board were persuaded by ministers that you shouldn't be released."

He suggests the commission may have come up with this proposal because of the increased workload that the new sentencing regime would generate for the Parole Board. But he questions whether civil servants in the prison service would have sufficient expertise to advise ministers on the risk posed by offenders.

"Who knows? They are dealing with the day-to-day looking after of the prisoners, and will have various views formed from that sort of contact.

"We suggested that there might be some scope for the Risk Management Authority, which is in its infancy at the moment, to play a part. Their role is, in cases of serious crime, to advise on whether it would be safe for people to be released."

The commission has also indicated that consistency of sentencing should be addressed, and McVicar says the new sentencing regime, if adopted, may make this a higher priority.

"That is something that needs to be addressed in the sentencing guidelines, and it was something the commission asked about in the consultation paper. In our view, any guidelines would be welcomed because there is clearly a degree of inconsistency in sentencing. It is a problem all over the country. There are people getting greater sentences in some parts of the country than they do in others, for no particular discernible reason.

"It may be that the judge takes the view that something is a more serious crime in for example Lanark than it was in Glasgow. If you are in Lanark, you may only see a few cases a year; if you are in Glasgow you are just awash with cases that would turn your hair white if you practised in the country."

If the Executive chooses to set aside the commission recommendations, McVicar says, the criminal law committee would "welcome the opportunity to discuss any alternatives."

He adds: "Basically, the commission proposals are to be welcomed because there is a very real concern about the arcane nature of the sentencing process. It is very difficult to work out exactly what a sentence means. The people who are supposed to be protected from criminal activity have no idea what the sentences mean, and I, along with many of my colleagues, take the view that it is better that the public know exactly what a sentence means."