Scott Macnab: Prison dilemma facing Scots judges

Despite attempts at change, almost a third of custodial sentences imposed are still for three months. Picture: Getty Images

It’s more than a decade since I was stalking the corridors of Sheriff and High courts around Scotland. They are part of the ritual apprenticeship of any journalist and a goldmine for great stories. A day in the sheriff court was always a real eye opener for the procession of characters copping a plea for minor, “low level offending” like shoplifting, theft, housebreaking (we don’t have burglary in Scotland), breach of the peace and reset (handling stolen goods). The reasons trotted out by weary defence lawyers tended to share common themes including the hardy perennial of splitting up with a girlfriend, being drunk or getting tricked into the whole escapade by a criminal colleague (who got away).

It was also remarkable how widespread cases of Attention Deficit and Hyperactivity Disorder (ADHD) seemed to be among those who found themselves in the dock. Offenders often had a list of previous convictions the length of your arm, but it always surprised me how many would again dodge prison and be handed community service. It was obvious to anyone who spent just one morning in court that prison was viewed as a last resort for many sheriffs. Things may have changed since the days when my shorthand was broadly passable, but has there been any great shift towards jailing minor offenders on the part of the bench? I doubt it. So the prospect of banning short sentences of less than a year in Scotland seems a radical move.

The country’s Chief Inspector of Prisons, David Strang, has called for the measure, insisting that shorter sentences do nothing to cut crime. Justice Secretary Michael Matheson will set out the way ahead later this year after a consultation, but Mr Strang has claimed ministerial thinking is towards extending the presumption. The Government has already introduced a “presumption against” sentence of three months or less, but that was a compromise measure and ministers had always wanted to go further. The finger of blame seems to hovering in the direction of judges, with a suspicion they have been effectively disregarding the guidelines. Former justice Secretary Kenny MacAskill has remarked that “sadly, presuming the end of short sentences proved premature.” Almost a third of custodial sentences imposed are still for three months, while another third are for periods between three and six months.

Judges can get round the presumption as long as they set out their reasons for doing so. In many ways it’s hard to blame them. Imagine being a sheriff or Justice of the Peace faced with a repeat offender making their umpteenth appearance before you, this time having broken into some poor family’s home? It is as clear as day that community sentencing is having no effect on such individuals. Don’t the public deserve some respite in these cases?

The prospect of domestic abuse victims losing out on vital protection if the 12-month sentences were scrapped was among the concerns raised in the Government’s consultation into its plans. The availability of such sentences means that victims are encouraged to come forward to report such abuse. Of course, judges can make an exception and impose jail as they do at the moment. But even this freedom could be subject to a crackdown by ministers. Mr MacAskill highlighted the call made by many for “restrictions on the ability of sentences to impose short periods of imprisonment” in the consultation. “Now, though, it’s for the politicians to act,” the former Justice secretary added.

Supporters of the move to end short sentences say the logic is clear - they do nothing to cut crime. The disruption to an offender’s life, such as losing their home and job when they are jailed, are among the concerns which suggest shorter sentences may be more hassle than they’re worth. Scotland jails more people per had than many other nations in Europe and a different approach is needed. Critics of the existing system point to higher re-offending levels among convicts who have been inside for a short spell. Jail, it seems, acts as a massive crime lab and anyone incarcerated is inveigled into the re-offending web. But perhaps it’s worth remembering that many will have turned to often widespread offending before they ended up inside.

It does seem clear that tough new community payback orders, seen as the answer by ministers, have lower re-offending rates, while allowing participants to make a “positive contribution” to the local community. But these have been subject of growing concerns. The most recent figures suggest that only about two-thirds of community sentences are being completed. And while this may be an improvement on previous years, thousands of offenders seem to be snubbing them.

There are also concerns about the way community sentences are resourced, with local councils which operate them warning that they will be among the areas hit by the hundreds of millions of pounds in funding cuts which they have suffered in recent years. Ministers insist that an extra £4 million has been invested in community sentences both last year and this. But at a time of crushing austerity, the suspicion is that the whole exercise is a giant cost-cutting scheme. Overcrowding is an ongoing issue in Scotland’s prisons, despite the arrival of major new facilities in Peterhead and Greenock in recent years. It costs up to £40,000 to pay for an inmate’s annual stay in jail, while the cost of a community payback order is just £10,000.

If the Scottish Government does decide to end 12-month sentences, it doesn’t appear that it would face any major obstacles in getting the measure through the Scottish Parliament, with the Liberal Democrats already holding out an olive branch and declaring their support for the measure. It would certainly be a brave move. Opponents are already warning that judges should be left free to decide on these things based on the merits of the individual case. Mr Matheson should be applauded for taking an evidence-based approach. But on such a fundamental issue as the future of the penal system, Scots must hope he’s looking at the right evidence.